Napper v Bultitude

[2009] SASC 160

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

NAPPER & ANOR v BULTITUDE & ANOR

[2009] SASC 160

Judgment of The Honourable Justice Gray

4 June 2009

PROCEDURE - COSTS - RECOVERY OF COSTS

Plaintiffs (respondents) to recover costs of trial in amount of $6,750.00 – litigation ‘complex’ within meaning of Magistrates Court Rules 1992 (SA) – reduction made in respect of length of trial – defendants (appellants) to recover a proportion of their costs, fixed at lump sum of $10,000.00 – plaintiffs entitled to judgment in amount of $3,655.81 together with interest of $666.81 leading to a total judgment of $4,322.62 – plaintiffs to recover costs, fixed at $6,750.00 – defendants to recover costs of appeal fixed at $10,000.00.

Napper & Anor v Bultitude & Anor [2009] SASC 37, considered.

NAPPER & ANOR v BULTITUDE & ANOR
[2009] SASC 160

Magistrates Appeal

GRAY J.

1. On 20 February 2009, I allowed an appeal in the within proceedings and set aside an award of damages.[1]  I indicated that I would hear the parties on costs and interest before entering judgment.

   [1]    Napper & Anor v Bultitude & Anor [2009] SASC 37.

2. The matter has had a long history and has been hard fought throughout.  That history is referred to in my reasons for judgment in the appeal.

3. The plaintiffs and respondents, Mr and Mrs Bultitude, claimed damages for breach of contract.  The claim involved 14 separate items.  The Magistrate assessed damages at $14,858.50.  On appeal, the award of damages was reduced to a total of $3,655.81.  At the end of the appellate process of the original 14 claims, 11 were reduced or dismissed.

4. The defendants and appellants, the Nappers accepted that the Bultitudes were entitled to an order for costs in the Magistrates Court, but contended that those costs should be reduced to reflect the fact that the claim was only partially successful.  A detailed submission was provided, which worked through the various considerations, leading to the contention that there should be an allowance of $3,400.00.  The Nappers submitted that they were entitled to the costs of the appeal, as they had been substantially successful, and invited the Court to fix a lump sum in the amount of $19,695.50.  This calculation reflected a reduction of one quarter, on account of the fact that the Nappers were only partially successful.

5. The Bultitudes accepted the general approach of the Nappers with respect to the trial costs, but sought a number of adjustments leading to a claim of $8,871.22.  The difference turned primarily on the extent of recovery for the six days of trial.  With respect to the appeal, it was contended that the parties should bear their own costs as both parties had succeeded in part.

6. Both parties invited the Court to take a robust approach to the resolution of costs and sought the Court to fix lump sums rather than engage in any form of detailed taxation of costs.  I agree that such an approach is appropriate.

7. I have reached the conclusion that the plaintiffs should recover their costs, including disbursements of trial in the lump sum of $6,750.00.  I have treated the litigation as complex within the meaning of the Magistrates Court Rules 1992 (SA), and I have made a reduction in respect of the length of trial.  As far as the appeal costs are concerned, I have reached the conclusion that the defendants should recover a proportion of their costs including disbursements which I fix at a lump sum of $10,000.00. 

8. To summarise, the plaintiffs are entitled to judgment in the amount of $3,655.81 together with interest of $666.81 leading to a total judgment of $4,322.62.  The judgment is to take effect from the date on which the Magistrate entered judgment.  In addition they should recover their costs which I fix at $6,750.00.  The defendants are to recover costs of the appeal which I fix at $10,000.00.  I direct that the parties prepare minutes of order to reflect the orders foreshadowed with respect to the appeal and all consequential orders.