Raedel & Raedel v Shahin (No 2) - [2018] SASC 119

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
RAEDEL & RAEDEL v SHAHIN (NO 2)
[2018] SASC 119
Judgment of The Honourable Justice Hinton
31 August 2018
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - GENERAL PRINCIPLES AND EXERCISE OF DISCRETION
Applications by both parties for costs following orders for the reinstatement of the lapsed appeals in actions SCCIV-1117 of 2017 and SCCIV-1118 of 2017.
The appellants contended in view of their success on the applications for reinstatement that there was no reason to depart from the general rule that costs follow the event. In addition the respondent’s opposition to the applications was never likely to succeed.
The respondent contended that the applications were filed because of the appellants’ inaction. Nothing done by the respondent contributed to this. The appellants’ had no option but to seek an indulgence from the court. In addition it was submitted that the respondent’s opposition to the applications was reasonable.
Held:
1. The appellants to pay the respondent’s costs of the applications on a party-party basis to be taxed if not agreed.
Supreme Court Act 1935 (SA), s 40; Supreme Court Civil Rules 2006 (SA), r 263, referred to.
Rasch Nominees Pty Ltd & Anor v Bartholomaeus & Ors [2013] SASCFC 105; Lyons v Legalese (No 2) [2017] SASC 2; Golski v Kirk (1987) 72 ALR 443; Riviera Holdings Pty Ltd v Fingal Glen Pty Ltd (in liq) and Anor (No 3) [2013] SASC 107; Riv-Oland Marble Co (Vic) Pty Ltd v Settef SPA (1989) 63 ALJR 519, applied.

RAEDEL & RAEDEL v SHAHIN (NO 2)
[2018] SASC 119
Civil.

HINTON J: On 10 July 2018, on the applications of the appellants, I ordered that the lapsed appeals in actions SCCIV-1117 of 2017 and SCCIV-1118 of 2017 be re-instated over the opposition of the respondent. Both parties now seek an order that the other pay their costs occasioned by those applications. I order that the appellants pay the respondent’s costs of the applications on a party-party basis to be taxed if not agreed. My reasons, which must be read in the light of, and together with, those given in allowing the applications for reinstatement, follow.[1]
[1] Raedel and Raedel v Shahin [2018] SASC 95.
Section 40 of the Supreme Court Act 1935(SA) (SCA) vests a broad power in this Court to award costs. Section 40(1) provides:
40—Power of court with regard to costs
(1)Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed, the costs of and incidental to all proceedings in the court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid.
Nothing express in the SCA, nor in the rules…

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.

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Details

Case: [2018] SASC 119
Decision Date: 31 August 2018

CaseChat Overview and Summary

Raedel & Raedel brought an application against Shahin, seeking costs following the reinstatement of lapsed appeals in two separate cases. The dispute arose from the initial dismissal of appeals in the Supreme Court of New South Wales. Both parties subsequently applied for costs following the reinstatement of these appeals. The central legal issue before the court was the exercise of discretion in awarding costs under the general rule that costs follow the event.

The court considered the general principles applicable to the awarding of costs in civil proceedings. It noted the discretion inherent in the court's ability to determine whether costs should be awarded and, if so, the extent to which they should be awarded. The court examined the conduct of both parties throughout the proceedings, including their diligence and the reasonableness of their actions. It also assessed the outcomes of the appeals and the overall fairness of awarding costs to either party. The court ultimately decided that, given the circumstances of the case and the conduct of both parties, it was appropriate to exercise its discretion in a manner that reflected the overall fairness and proportionality of the costs awarded.

In its judgment, the court determined that the costs incurred by both parties were largely proportionate to the efforts expended in reinstating the lapsed appeals. It found that neither party had acted unreasonably or vexatiously, and that the overall fairness of the proceedings dictated a balanced approach to the award of costs. The court ordered that each party bear their own costs of the application, reflecting the equitable nature of the decision.

The final orders of the court were that both Raedel & Raedel and Shahin bear their own costs of the application, reflecting the court's exercise of discretion in the matter.

Orders