Ouwens Casserly Real Estate Pty Ltd v Harcourts South Australia Pty Ltd

Ouwens Casserly Real Estate Pty Ltd (OCRE) and Harcourts South Australia Pty Ltd (Harcourts) were parties to litigation concerning alleged breaches of contract and misleading or deceptive conduct. The dispute ultimately came before the Full Court of the Supreme Court of South Australia on appeal.

The central legal issues before the Full Court were whether the primary judge erred in their assessment of costs, specifically in relation to the application of a costs agreement between the parties and whether the primary judge had exercised their discretion appropriately in awarding costs.

The Full Court considered the terms of the costs agreement and the principles governing the exercise of discretion in awarding costs. The Court affirmed that a costs agreement, properly construed, would generally be given effect by the court. However, the Court also reiterated that the ultimate discretion to award costs, and the quantum thereof, remains with the court, which must consider all relevant circumstances, including the conduct of the parties and the merits of the case. The Court found that the primary judge had not erred in their approach to the costs agreement or in the exercise of their discretion.

The appeal was dismissed, and the orders of the primary judge regarding costs were affirmed.