Rasch Nominees Pty Ltd v Bartholomaeus (No 3) - [2013] SASC 14

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
RASCH NOMINEES PTY LTD & ANOR v BARTHOLOMAEUS & ORS (No 3)
[2013] SASC 14
Judgment of The Honourable Chief Justice Kourakis
7 February 2013
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - THIRD PARTIES
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF ISSUES
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - CO-DEFENDANTS
Judgment on the substantive issues delivered on 30 April 2012. Thereafter, submissions on the form of the final orders and the question of costs heard. On 21 September 2012 orders were made and reasons published.
Following those orders the third, fourth and fifth defendants pursued an application for a lump sum assessment of the costs payable by the second plaintiff and applied for an interim allocator with respect to costs payable by the first plaintiff. In the course of hearing those applications a question arose as to the meaning and effect of the costs orders made on 21 September 2012. The first, second, third, fourth and fifth defendants contended that Order 3 of 21 September 2012 applies further, beyond damages, to the costs attributable to work done on liability. The defendants also contend that the second plaintiff’s liability to pay indemnity costs operates until the filing of its notice of discontinuance.
Held: the application for a lump sum assessment of costs is adjourned, on conditions, for the first plaintiff to obtain reports and put forward any further material – Order 3 of 21 September 2012 varied to apply only to the costs of the defendants attributable to work done relating to the second plaintiff’s damages claim – that is, the second plaintiff is to pay the first, second, third, fourth and fifth defendants their costs on the issue of damages in, and on any other issue peculiar to the second plaintiff’s claim, in the action on an indemnity basis from the date of the joinder of the second plaintiff – the second plaintiff be jointly and severally liable to the pay the costs ordered against the first plaintiff in Order 4.2 and Order 5 of 21 September 2012 – there be an interim allocatur against the first plaintiff on Order 5 of 21 September 2012 in the sum of $150,000.
Supreme Court Civil Rules 2006 (SA) r 107(4), r 271, referred to.
Rasch Nominees Pty Ltd & Anor v Bartholomaeus & Ors [2012] SASC 70; Rasch Nominees Pty Ltd & Anor v Bartholomaeus & Ors (No 2) [2012] SASC 168; Currabubula & Paola Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232; D A Starke Pty Ltd v Yard & Anor [2012] SASC 19; Howards Storage World Pty Ltd & Ors v Haviv Holdings Pty Ltd (2010) 182 FCR 84 ; Keen v Towler (1924) 41 TLR 86; Baronglow Pty Ltd v Thomas (No 7) [2008] SASC 33; Russo v Buck & Ors (No 5) [2010] SASC 27

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: [2013] SASC 14
Decision Date

CaseChat Overview and Summary

The case of Rasch Nominees Pty Ltd v Bartholomaeus (No 3) involves parties engaged in protracted litigation. The primary focus of this proceeding was the resolution of costs following the substantive judgment on the merits, which had been delivered earlier. The key legal issues revolved around the interpretation of the costs orders made previously and the application of the general rule that "costs follow the event." The defendants contended that the costs orders should extend to include the costs related to the work done on liability, beyond just damages. They also argued that the second plaintiff's indemnity costs liability should continue until the filing of its notice of discontinuance.

The court addressed these issues by clarifying the scope of the costs orders. The Chief Justice determined that Order 3 of the previous costs orders should be limited to the costs attributable to work done that was peculiar to the second plaintiff's claim, particularly relating to damages. The court further ruled that the second plaintiff would be jointly and severally liable for the costs ordered against the first plaintiff. Additionally, an interim allocatur of $150,000 was ordered against the first plaintiff, subject to certain conditions. The application for a lump sum assessment of costs was adjourned pending further reports from a costs expert. The court emphasized that costs should reflect the way common issues were decided and the reasonableness of the respective claims and defenses. This nuanced approach aimed to balance the cost efficiencies of joint actions with the principles of fairness and justice in cost apportionment.

Orders