Paringa Property Services Pty Ltd v Green - [2012] SADC 41

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
PARINGA PROPERTY SERVICES PTY LTD v GREEN & ANOR
[2012] SADC 41
Judgment of His Honour Judge Boylan
5 April 2012
PROCEDURE - COSTS - PRACTICE MATTERS
Application for discovery against non-party; costs issue - whether court "functus officio" after consent judgment perfected.
Held - court not "functus officio". Appeal dismissed.
District Court Act 1991 s 42; District Court Civil Rules 2006 Rules 265, 270, 116, 117 and 242, referred to.
FAI General Insurance v Southern Cross Exploration (1988) 165 CLR 268; Pollard v Incorporated Nominal Defendant [1972] VR 955 at 962, considered.

PARINGA PROPERTY SERVICES PTY LTD v GREEN & ANOR
[2012] SADC 41
APPEAL FROM A MASTER

The plaintiffs to this action, now the respondents, sued the defendant building company, now the appellant, after it had performed building works for them. The building works were found to be defective and the relevant authority ordered that the structure be demolished and re-built. Eventually, the plaintiffs sued the defendant company. The action settled when the defendant filed an offer to consent to judgment in favour of the plaintiffs. After the judgment had been perfected, the plaintiffs pursued an application for the discovery of documents and indemnity costs against a non-party, the director of the building company. The company objected to the Master’s entertaining the Application on the basis that the court was functus officio once the Consent Judgment had been perfected. The Master held that he was not functus officio. The defendant building company now appeals from that decision.
FACTS
On 9 March 2011, the plaintiffs filed an offer to consent to judgment in the sum of $83,461.50 which sum included some $15,000 for legal costs. On 10 March 2011, the defendant filed an Acceptance of the plaintiffs’ offer.
On 4 April 2011, the plaintiffs brought an application for various orders relating to the production of documents and indemnity costs against a non-party, Mr P Stone, who is the sole director of the defendant company. The plaintiffs brought the application when it came to their attention that documents discovered to them by the defendant may have been copies of forgeries.
The application came before the learned Master on 12 April 2011. The Master set the application down for argument and made ancillary orders.
On 14 April 2011, consent judgment was entered in the record of the Court. On the same day, the plaintiffs issued a Notice of Statutory Demand to enforce the judgment. There has never been an application to set the judgment aside. Indeed, the judgment sum has been paid in full.
The learned Master heard argument on 16 August 2011. At that hearing, the defendant argued that the court had no jurisdiction to entertain the plaintiffs’ application as the court was functus officio from the time at which the consent judgment was perfected on 14 April 2011. The learned Master rejected the argument and held that the court had jurisdiction to deal with the application.
The defendant/appellant relied upon the Decision of the High Court in FAI General Insurance v Southern Cross Exploration (1988) 165 CLR 268 and to a line of authorities referred to in that case. That case does not support the appellant’s argument. Wilson J, with whom Brennan, Deane and Dawson JJ, agreed, held that the Supreme Court of New South Wales had not become functus officio upon an application’s standing dismissed after a party had failed to comply with the terms of a self-executing order. Wilson J expressly disagreed with the view of the Victorian Supreme Court in Pollard v Incorporated Nominal Defendant [1972] VR 955 at 962 that:
Once any proceedings, whether final or interlocutory, have been concluded by a court order it has fully taken effect so as to create new rights and obligations as between the parties then those proceedings may properly be treated as dead, subject only to appeal.
At p286 of the judgment in FAI General Insurance, (supra) Wilson J declined to follow Pollard (supra).
I mention the FAI case only because the appellant relied so heavily upon it before the learned Master and on this appeal. As I have said, that case does not assist the appellant.
In my respectful opinion, the learned Master was correct when he noted that the application before him was about costs and went on to decide that, in those circumstances, the District Court Act 1991 and the Rules of court gave the court jurisdiction to entertain the plaintiffs’ application.
The Master relied especially upon s 42 of the District Court Act 1991 and Rules 265 and, to a lesser extent, Rule 270.
Section 42 of the District Court Act 1991 gives the court power to award costs against any person, including a non-party.
Rule 265(1) reads:
(1) The court may deal with costs at any stage of proceedings, (before or after final judgment has been given).
Rule 270 provides that:
… enquiries about costs can be determined by a Master.
The Master held, at para 18 of his Reasons, that “the court is not relevantly functus officio. The court is endowed with authority to deal with the application for three reasons. The first, the application was issued before judgment was entered on 14 April 2011 and indeed was set down for argument before that time. Second, in my view, section 42(1) is broad enough to address the issue of costs at any time including after the effecting of any judgment. Third, Rule 265 specifically advised to deal with costs issues at any time”.
In my view, the learned Master was correct in deciding that the court was not functus officio and he was correct, with respect, for the reasons which he gave.
In argument before me, the respondents went further and relied upon Rules 116 and 117. Rule 116 gives the court power to manage litigation to ensure that it is conducted fairly and as expeditiously and economically as is consistent with the proper administration of justice. Rule 117 provides that the court may make any order it considers necessary for the proper conduct of a proceeding or otherwise in the administration of justice.
The respondents also relied upon Rule 242 which gives the court the power, if satisfied that the justice of the case so requires, to vary a judgment or set aside a judgment and re-open an action. It was the respondents’ argument that the fact that power is given to the court to vary a judgment is an indication that the court is not functus officio simply because final judgment has been entered. In my view, that submission is correct. The Rules give very wide powers to deal with costs and, indeed, to vary judgments.
I was not asked, on this appeal to investigate in any detail, the interest of justice. Here, the plaintiffs wish to investigate whether or not the interests of justice require that costs should indeed be ordered against a third party. It seems to me, that in the circumstances of this case, there can be no doubt that the respondents should be entitled to make those investigations.
Accordingly, for the reasons given by the learned Master and on account of the Rules further referred to by the respondents’ counsel, I conclude that the Master was not functus officio. I dismiss the appeal.