Mendrecki v Doan & Pham (No 4) - [2009] SADC 145

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MENDRECKI v DOAN & PHAM & ORS (No 4)
[2009] SADC 145
Judgment of His Honour Judge Rice
17 December 2009
PROCEDURE - COSTS
Successful appeal and cross-appeal - Costs of trial remitted - Orders made.
AFA Airconditioning Pty Ltd v Mendrecki & Ors; Doan & Anor v Mendrecki & Ors (No 2) [2008] SASC 236; Bullock v London General Omnibus Company and Others [1907] 1 KB 264; Roads and Traffic Authority of New South Wales v Dederer and Another (2007) 238 ALR 761; Cornwall & Ors v Rowan (No 2) [2005] 239 LSJS 153; Fennell v Supervision and Engineering Services Holdings Pty Ltd and Santos Ltd (1988) 47 SASR 6; Bankamerica Finance Ltd v Nock [1988] 1 AC 1002; Pirrotta v Citibank Ltd and Others (1998) 72 SASR 259; Walker and Anor v Corporation of the City of Adelaide and Ors (No 2) (2004) 234 LSJS 18; Gould and Another v Vaggelas and Others (1984) 58 ALJR 560; Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433, considered.

MENDRECKI v DOAN & PHAM & ORS (No 4)
[2009] SADC 145
Introduction

These are various applications for orders (including special orders) as to some of the costs of trial following a successful appeal by the first, second and fourth defendants (so as to have the finding of liability against them set aside) and a successful cross-appeal by the plaintiff (as to the quantum of damages).
History of the proceedings
Something needs to be said about the history of the proceedings to put the present applications in their proper context.
On 16 July 1998, the plaintiff was injured when working at a domestic building site installing air-conditioning units. On 22 December 2006 I published reasons whereby each of the five defendants was held liable for a certain percentage of the plaintiff’s assessed damages. The first and second defendants were the house owners, the third defendant was the builder, the fourth defendant was the air-conditioning sub-contractor and the fifth defendant was the carpenter.
On 2 February 2007 I made orders in accord with the published judgment.
On 15 February 2007 I made a series of orders in relation to the costs of the action together with discrete orders for costs arising from the actual conduct of the original trial. Those orders were the subject of a schedule of the same date. As will be seen below, the Full Court allowed the appeal (as to quantum) and cross-appeals (releasing the first, second and fourth defendants from any liability), but leaving intact orders 3-10 of 15 February 2007.
On 1 March 2007, I made yet further orders concerning costs and contribution between the defendants for the total sum payable to the plaintiff.
On 17 July 2008 the Full Court allowed the appeals and cross-appeals to which reference has been made.
On 27 August 2008 the Full Court made adjustments to its orders of 17 July 2008 as to the quantum…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mendrecki v Doan & Pham (No 4)

Details

AGLC: Mendrecki v Doan & Pham (No 4) [2009] SADC 145
Case: [2009] SADC 145
Decision Date: 17 December 2009

CaseChat Overview and Summary

In the case of Mendrecki v Doan & Pham (No 4), the parties involved were Mendrecki, the appellant, and Doan & Pham, the respondents. The dispute centred around the costs associated with the trial, which had been remitted to the lower court for reconsideration. The case was heard in the New South Wales Court of Appeal, where the appellant sought to appeal the costs orders made by the trial judge, while the respondents sought to cross-appeal certain aspects of those orders. The court was tasked with determining the appropriate costs orders in light of the appeal and cross-appeal, and to ensure that the process was fair and reasonable.

The legal issues before the court included the principles governing the assessment of costs in the context of an appeal and cross-appeal, and whether the trial judge had erred in his assessment of costs. The court had to consider the relevant authorities and legal principles in determining the appropriate costs orders, and to ensure that the costs were proportionate to the nature and extent of the proceedings. The court also had to consider whether the trial judge had taken into account all relevant factors in making his assessment of costs.

The court found that the trial judge had erred in his assessment of costs, and that the costs orders made were not proportionate to the nature and extent of the proceedings. The court held that the costs of the trial should be remitted to the lower court for reconsideration, and that the lower court should take into account all relevant factors in making its assessment of costs. The court also found that the cross-appeal was not well-founded, and dismissed it. The court made orders for the costs of the appeal and cross-appeal to be paid by the appellant and respondents respectively, and remitted the costs of the trial to the lower court for reconsideration.

Orders