Milen T/A Jo-Anne N Milen & Associates v Stec (No 2) - [2019] SADC 81

District Court of South Australia
(Civil)
MILEN T/A JO-ANNE N MILEN & ASSOCIATES v STEC (No 2)
[2019] SADC 81
Decision of His Honour Judge O'Sullivan (ex tempore)
13 June 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS
PROCEDURE - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS - EXECUTION AGAINST PROPERTY - OTHER WRITS AND MODES OF EXECUTION - CHARGING ORDERS
The defendant was unsuccessful in his counterclaim. The plaintiff applied for costs limited to counsel fees and sought an order that costs be assessed on a lump sum basis. The plaintiff had received an allocatur in its favour arising out of Supreme Court Action SCCIV-16-375. The plaintiff seeks a charging order over the defendant’s property for the amount in the Supreme Court allocatur and any award for costs in this matter.
Held: Costs assessed on a lump sum basis. Plaintiff’s application for a charging order refused.
Enforcement of Judgments Act 1991 s 8; District Court Civil Rules 2006 rr 263(4), 264(5)(c); Supreme Court Civil Rules 2006 generally, referred to.
Linke v TT Builders Pty Ltd (No 2) [2015] FCA 704; CP (Adelaide) & Ors v Hartford (Holdings) & Anor (No.9) [2002] SADC 107; Hammerton v Gleeson [2009] SASC 79; Spralja v David Bullard & Ors [2018] VCC 437; Leary v Leary [1987] 1 All ER 261; Smoothpool v Pickering [2001] SADC 131, considered.

MILEN T/A JO-ANNE N MILEN & ASSOCIATES v STEC (No 2)
[2019] SADC 81

On 17 May 2019, I delivered judgment in this matter in which I dismissed the defendant's counterclaim. I reserved the question of costs.
On that occasion the plaintiff (defendant by counterclaim) sought costs on a lump sum basis and limited its claim for costs to counsel fees. The plaintiff also foreshadowed an application to charge the defendant's property with the amount adjudicated by the Supreme Court in an allocatur issued in favour of the plaintiff on 17 April 2018 in Supreme Court action SCCIV-16-375 in the amount of $29,009.92, together with interest accruing thereon in accordance with the Supreme Court Civil Rules 2006.
I listed the matter for argument on 13 June 2019 and I directed the plaintiff to file an interlocutory application in relation to the charging order as well as provide such further information in support of its oral application for costs to be paid on a lump sum basis as it considered necessary. The plaintiff filed its application on 21 May 2019, supported by an affidavit sworn by Ms Jo-Anne Milen on 30 January 2019 but filed 21 May 2019.
By application filed 7 June 2019, supported by an affidavit of Mr Stec sworn the same day, the defendant seeks:
1.The order made 17 May 2019 be set aside.
2.There be a retrial in the proceedings for the defence and counterclaim.
3.The plaintiff's application of 17 May 2019 be dismissed.
I heard argument on the plaintiff's applications and the defendant's application on 13 June 2019.
As to the plaintiff's application for costs on a lump sum basis, the ordinary rule is that costs follow the event. There is nothing that has been put to me that persuades me that an order for costs in favour of the plaintiff should not be made.
The plaintiff applies under rule 264(5)(c) of the District Court Civil Rules 2006 (‘DCR’) that the court award costs by way of a lump sum. That rule calls for the exercise of a discretion which must be exercised judicially and only after giving the parties an adequate opportunity to make submissions.[1]
[1] See Leary v Leary [1987] 1 All ER 261.
It is clear from a consideration of the authorities that the power in sub-rule (5)(c) can only be exercised upon sufficient evidence that allows a proper assessment of a lump sum which is fair to all parties.[2] Although the exercise of the power is pursuant to the general discretion on the question of costs, ultimately one of the main factors as to whether or not such an order should be made involves the promotion of the interests of justice in the circumstances of the particular case.
[2] See Smoothpool v Pickering [2001] SADC 131.
In this matter I observed in the judgment that I entertain no doubt that Mr Stec is obsessed with what he perceives as being an injustice done to him. I also observed that the resentment permeated his evidence to the extent that his allegations are opportunistic and are directed to try to avoid responsibility for his legal costs.
I considered all the matters raised in the affidavits which have been filed in relation to these two issues. I have also listened carefully to the submissions of both the plaintiff's counsel, Mr Tredrea, and Mr Stec.
I note that in related proceedings in the Supreme Court, to which I have referred earlier, the adjudication process was protracted.
Having considered all the matters put to me, in my view, provided there is a proper basis for assessing the quantum of costs, it is appropriate to proceed by way of lump sum order for costs. The plaintiff claims the sum of $29,973.66. That sum reflects disbursements only in the form of counsel fees.
Exhibited to the second Milen affidavit at JNM-1 are all of counsel's fee notes which relate to this matter. The plaintiff seeks a further $900 claimed over the amount revealed by counsel's fee notes, to reflect $300 for attending to receive judgment and $600 for today's attendance.
The fee notes are itemised and a consideration of those fee notes indicates an hourly rate of between $300 and $320 and a daily trial fee of $3,000. The recommended counsel fees for the period in question are a daily trial fee for junior counsel of between $2,000 and $3,200 and an hourly rate of between $250 and $400. Clearly the rates charged by counsel in this matter fall within those parameters.
Examination of the items on each of the fee notes reveals tasks which are appropriate to the matter.
I consider the fee of $300 for receiving judgment and $600 for today's attendance to be reasonable.
I note the discretion referred to in DCR 263(4) and the reference to the importance, difficulty and time reasonably occupied in hearing the matter. I am satisfied it was appropriate to retain junior counsel to argue the matter and that it is appropriate to award costs for junior counsel. Accordingly I order the defendant pay the plaintiff's costs of and incidental to the proceedings pursuant to DCR 264(5)(c). In the exercise of my discretion I award the plaintiff its costs on a lump sum basis in the sum of $29,973.66.
As to the plaintiff's application for a charging order, the plaintiff also seeks that the defendant's land known as 9 Darwendale Street, Huntfield Heights in the State of South Australia be charged with the payment of the amount of the allocatur issued in favour of the plaintiff on 17 April 2018 in Supreme Court action SCCIV 16-375 in the amount of $29,009.92 and interest accruing thereon under the Supreme Court Civil Rules 2006 and the order for costs made in this action, being District Court action DCCIV-16-61, together with the costs of registration and withdrawal of the charge at the Lands Titles Office.
Pursuant to s 8 of the Enforcement of Judgments Act 1991 a court may on application by a judgment creditor, charge property of a judgment debtor with a judgment debt or part of a judgment debt. I have had regard to the authorities to which I was referred, namely Linke v TT Builders Pty Ltd (No 2),[3] particularly at paragraph 11, CP (Adelaide) & Ors v Hartford (Holdings) & Anor (No.9)[4] at paragraphs 7, 8, 11-14 and 17, and Hammerton v Gleeson[5] at paragraph 14.
[3] [2015] FCA 704.
[4] [2002] SADC 107.
[5] [2009] SASC 79.
I note there is no application for sale.
Having heard submissions from the plaintiff and the defendant on this matter, I am not satisfied that it is appropriate to issue a charging order over the defendant's property. The question of a charging order is a matter which can await the outcome of any appeal and of course the plaintiff can reapply for a charging order if so advised. Accordingly, I dismiss the plaintiff's application filed 21 May 2019 in which it seeks a charging order.
As to the defendant's application filed 7 June 2019, the defendant seeks three orders in his application.
The first two orders sought, namely that the order of 17 May 2019 dismissing the defendant's counterclaim be set aside and there be a retrial in the proceedings for the defence and counterclaim are matters for appeal and over which this Court has no jurisdiction.
To the extent the defendant relies on DCR 242 there is nothing put forward by the defendant that warrants the Court taking any action pursuant to that rule.
Mr Stec relies on substantially the same grounds as he relies on in relation to DCR 242 to advance an argument based in equity. He referred to Spralja v David Bullard & Ors.[6] That was not a matter that was raised during the trial of this action but irrespective of that, whereas relevant in a general sense I do not consider it applies to the particular facts of this case as revealed by the evidence.
[6] [2018] VCC 437.
I dismiss the application in paragraphs 1 and 2 of the defendant's application. As to the third order sought, namely that the plaintiff's application of 17 May 2019 be dismissed Mr Stec confirmed that he was referring to both the application for lump sum costs and the charging order. Having heard argument on the matter I have already ruled in relation to both those topics.
There will be an order in terms of paragraphs 1 and 10 of the draft minutes of order handed up by the plaintiff as initialled by me.
I have previously ordered that the time for an appeal in this matter is not to commence until such time as I had determined these applications. For the avoidance of doubt I confirm that the appeal period will commence as from

12.01 a.m. on 14 June 2019.