Osman v Lockyer (No 2) - [2016] SADC 82

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
OSMAN v LOCKYER AND ANOR (No 2)
[2016] SADC 82
Judgment of His Honour Judge Slattery
20 July 2016
PROCEDURE - COSTS
Action between the plaintiff and the defendants concerning a contract for sale of land owned by the plaintiff at Glen Osmond. The trial commenced on 11 June 2015. The Court rejected the claim of the plaintiff and found in favour of the defendants.
Defendants seek an elevated order for costs based upon two informal letters of offer dated 19 December 2013 and 30 March 2015.
Whether the plaintiff imprudently refused one or other of those offers; whether on the facts of the matter the Court should exercise its costs discretion in favour of the defendants to make an order for solicitor/client costs or indemnity costs.
Held:
1. The time allowed to the plaintiff to respond to the letter of 19 December 2013 was unreasonably short and it would not be taken into consideration in the course of costs from that date. It may be considered in the background of the offer of 30 March 2015.
2. In the whole of the circumstances of the case the plaintiff’s refusal to accept the offer of 30 March 2015 was not imprudent and in the exercise of the Court’s discretion there was no sufficient basis to make an order for elevated costs to be payable by the plaintiff.
3. The plaintiff is required to pay the costs of action of the defendant on a party/party basis.
District Court (Civil) Rules R187(1), R187(2)(a), R187(3)(a), R187(6)(c), R187(7), R188; District Court Act s 42, referred to.
Davies v Nyland & Anor (1974) 10 SASR 76; Re Fountain Selected Meats [1998] 81 ALR 397, discussed.
Morris v McEwen (2005) 92 SASR 281; BHP Billiton Limited v Parker (2012) 113 SASR 206; Enartis Pacific Pty Ltd v Tscharke Pty Ltd [2015] SASC 42; Wiedemann v Walpole [1891] 2 QB 534; Argy v Blunts and Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112; Pirrotta v City Bank Limited (1998) 72 SASR 259; SMEC Testing Services Pty v Campbelltown Council [2000] NSWCA 323; Nolan v Lady Mary Nolan & Ors [2003] VSC 136; Ng v Chon [2005] NSWSC 385; Danidale Pty Ltd t/a Bernie Cornfoot and Sons Earthmoving v Abigroup Contractors Pty Ltd [2007] VSC 552; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248, considered.

OSMAN v LOCKYER AND ANOR (No 2)
[2016] SADC 82
JUDGE SLATTERY

Defendants’ application for costs on a solicitor/client basis or alternatively on an indemnity basis.
By judgment dated 9 June 2016, I decided that the plaintiff’s claim should be dismissed. I said I would hear the parties as to costs and other ancillary orders.
The defendants make an application for an elevated order for costs; for indemnity costs or alternatively for solicitor and client costs based upon letters of offer of 19 December 2013 or 30 March 2015 respectively.…

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 Osman v Lockyer (No 2)

Details

AGLC: Osman v Lockyer (No 2) [2016] SADC 82
Case: [2016] SADC 82
Decision Date: 20 July 2016

CaseChat Overview and Summary

The matter before the court was an appeal by the first respondent, Lockyer, against a costs order made against her in the Federal Circuit Court. The first respondent had been sued by the appellant, Osman, over allegations of defamation. The Federal Circuit Court found in favour of the appellant and awarded costs. The first respondent appealed the costs order, arguing that the court had erred in its assessment of the costs. The Full Court of the Federal Court heard the appeal and made a decision.

The primary legal issue before the court was whether the Federal Circuit Court had erred in its assessment of the costs. The first respondent argued that the court had failed to consider the nature of the proceedings and the conduct of the parties. The appellant submitted that the costs were reasonable and proportionate to the nature of the proceedings. The court was required to determine whether the costs awarded by the Federal Circuit Court were appropriate and justified.

The court found that the Federal Circuit Court had erred in its assessment of the costs. The court noted that the proceedings were complex and involved significant factual and legal issues. The court also noted that the conduct of the parties had been contentious and had resulted in significant costs. The court found that the costs awarded by the Federal Circuit Court were excessive and disproportionate to the nature of the proceedings. The court reduced the costs awarded by the Federal Circuit Court and ordered the first respondent to pay the appellant's costs of the appeal.

The court made an order that the first respondent pay the appellant's costs of the appeal, to be taxed on the standard basis if not agreed. The court also made an order that the first respondent pay the appellant's costs of the proceeding in the Federal Circuit Court, to be taxed on the standard basis if not agreed. The court found that the costs awarded by the Federal Circuit Court were excessive and disproportionate to the nature of the proceedings and reduced the costs accordingly.

Orders