Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd (No 2)

[2019] SASCFC 104

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

PLAYFORD VINEYARD PTY LTD v WISHFORD NOMINEES PTY LTD (NO 2)

[2019] SASCFC 104

Judgment of The Full Court

(The Honourable Justice Peek, The Honourable Justice Parker and The Honourable Justice Doyle)

23 August 2019

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF ISSUES

On 12 August 2019, the Court dismissed the appeal and cross-appeal in these proceedings.

Consideration of appropriate order for costs.

Held:

1.       The appellant / cross-respondent is to pay the respondent / cross-appellant 75 per cent of its party and party costs of the appeal and cross-appeal. 

Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd [2019] SASCFC 99, considered.

PLAYFORD VINEYARD PTY LTD v WISHFORD NOMINEES PTY LTD (NO 2)
[2019] SASCFC 104

Full Court:      Peek, Parker and Doyle JJ

1. THE COURT:      On 12 August 2019, the Court dismissed the appeal and cross-appeal in these proceedings: Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd.[1]

   [1]    Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd [2019] SASCFC 99.

2. In determining the issue of costs of the appeal and cross-appeal, the guiding consideration in this case is that costs should follow the event.  The parties do not suggest otherwise. 

3. One approach would be to make two separate orders, namely that the appellant / cross-respondent (Playford) pay the costs of the respondent / cross-appellant (Wishford) of the appeal, and that Wishford pay Playford’s costs of the cross-appeal.  However, as this approach has the potential to complicate any adjudication of costs that might become necessary, we consider it appropriate to make a single costs order in respect of the combined costs of the appeal and cross-appeal.  There is no opposition to this approach.  The dispute between the parties is confined to the proportion of these combined costs that should be awarded in favour of Wishford.

4. In determining the proportion of the combined costs that should be awarded in favour of Wishford, it is appropriate to have regard to a comparison between the costs likely to have been reasonably incurred in relation to the appeal and cross-appeal respectively.  In carrying out this comparison, it is both necessary and appropriate that this Court approach the matter in a relatively broad-brush manner.

5. The nature of the issues raised by the appeal and cross-appeal is set out in the reasons of the Court.  There is no doubt that the appeal occupied a significantly greater proportion of hearing time, and would have required significantly greater preparation.  The appeal raised a number of factual and legal issues that required consideration in the context of the trial as a whole, whereas the cross-appeal involved a relatively confined construction issue.  Having regard to the reasons of the Court, as well as the conduct of the appeal and cross-appeal, we consider that it is appropriate to order that Playford pay Wishford 75 per cent of its combined costs of the appeal and cross-appeal, on a party and party basis.

6. Wishford also seeks an order that certain monies held in the suitors fund be paid to it.  There may well be force in Wishford’s claim to these funds given the orders made by this Court. However, in circumstances where Wishford’s claim to these funds is contested, where the basis for that contest includes reliance upon matters that were addressed by the trial judge subsequent to trial (and which were not the subject of the appeal or cross-appeal), and where the parties accept that it is appropriate that various other matters be addressed by the trial judge, we consider it appropriate to refer the issue of any payment out of the suitors fund to the trial judge.

7. The orders of the Court will thus be:

   1.   The appellant / cross-respondent is to pay the respondent / cross-appellant 75 per cent of its party and party costs of the appeal and cross-appeal.

   2.   Further consideration of the matters remaining in issue in the proceedings, including the respondent / cross-appellant’s application for payment out of monies in the Court Suitors Fund, is referred to the trial judge.