Roennfeldt v Wyness (No 2) - [2022] SASC 139

Supreme Court of South Australia
(Civil)
ROENNFELDT & ANOR v WYNESS & ANOR (No 2)
[2022] SASC 139
Judgment of the Honourable Auxiliary Justice Parker
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - PARTIAL SUCCESS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - SCALES OF COSTS - APPLICABLE SCALE
This is a claim for costs following a successful appeal against a decision of a Magistrate. The appellants have sought the costs of the appeal and also the costs of the proceedings in the Magistrates Court.
Held:
1.      The appellants are entitled to their costs of and incidental to the appeal, including the taking of further evidence on the appeal.
2.      The appellants are entitled to 90% of their costs of and incidental to the proceedings in the Magistrates Court, subject to order 3.
3.      The costs fixed under order 2 are to be fixed at 75% of the rate applicable from time under the Higher Courts scale or Supreme Court scale (as the case may be).
Fences Act 1975 (SA) s 12(7); Magistrates Court (Civil) Rules 2013 (SA) Sch 3 item 7; Uniform Civil Rules 2020 (SA) r 1.4, sch 6 pt 3 item 7 , referred to.
Miller v Miller (No 2) [2017] SASC 53; Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107; James & Ors v Surf Road Nominees Pty Limited & Ors (No 2) [2005] NSWCA 296; Dodds Family Investments Pty Ltd v Lane Industries Ltd (1993) 26 IPR 261; Rawley Pty Ltd ACN 009 027 454 v Bell (No 3) [2007] FCA 1429, considered.

ROENNFELDT & ANOR v WYNESS & ANOR (No 2)
[2022] SASC 139
PARKER J:
Introduction

This is a claim for costs following a successful appeal against a decision of a Magistrate. The appellants have sought the costs of the appeal and also the costs of the proceedings in the Magistrates Court.
The principles to be applied - the respondents’ submissions
In support of their contention that a “broad axe’ should be applied to determine costs, the respondents refer to the decision of Blue J in Miller v Miller (No 2).[1] In that case Blue J stated that it was necessary to consider the degree to which the issues on which the successful party failed were distinct and severable, the proportion of costs incurred in respect of the issues on which the successful party failed, the strength or merit of the issues on which they failed, and the conduct generally of the successful party. The respondents further submit that the costs order can be made either on an issue by issue basis or as a percentage depending upon the severability of the issues.[2]
[1] [2017] SASC 53 at [6].
[2] Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107. Finkelstein and Gordon…

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: [2022] SASC 139
Decision Date: 21 November 2022

CaseChat Overview and Summary

In the case of Roennfeldt v Wyness (No 2), the parties were involved in a legal dispute that originated in the Magistrates Court and was subsequently appealed. The central issue in this appeal was the determination of costs associated with both the trial and the appeal proceedings. The appeal court was tasked with deciding the appropriate scale for fixing costs and whether certain costs should be apportioned between the parties.

The legal issues primarily revolved around the appropriate scale for fixing costs in the appeal and whether the respondents were entitled to any costs of the trial. The appeal court considered whether the ordinary scale for proceedings in the Magistrates Court was suitable or if a higher court scale should apply. Additionally, the court examined whether the respondents should bear any costs of the trial, particularly those related to the expert evidence presented.

The appeal court concluded that the ordinary scale for the Magistrates Court was not appropriate and opted for a scale at 75% of the Higher Courts rate. The court determined that the appellants overwhelmingly succeeded on the appeal, save for a minor issue of statutory construction. Consequently, the court ruled that costs should follow the event, awarding the appellants the costs of the appeal, including those related to the taking of further expert evidence and written submissions on the award of costs. Regarding the trial costs, the court found that while there were some issues with the respondents' expert's proposal, the appellants' arguments had substantial force, and thus, the respondents should not be entitled to any costs of the trial.

The final orders made by the appeal court were that the appellants were entitled to their costs of and incidental to the appeal, including the taking of further evidence on the appeal. Additionally, the appellants were entitled to 90% of their costs of and incidental to the proceedings in the Magistrates Court, but these costs were to be fixed at 75% of the rate applicable from time under the Higher Courts scale or Supreme Court scale.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the reasons indicated at [32] to [34] I do not consider that fixing costs in accordance with the ordinary scale for proceedings in the Magistrates Court is appropriate. I consider that costs should be fixed at 75% of the scale applicable in the Higher Courts. Conclusion I will make orders in the following terms: 1.The appellants are entitled to their costs of and incidental to the appeal, including the taking of further evidence on the appeal. 2.The appellants are entitled to 90% of their costs of and incidental to the proceedings in the Magistrates Court, subject to order 3. 3.The costs fixed under order 2 are to be fixed at 75% of the rate applicable from time under the Higher Courts scale or Supreme Court scale (as the case may be).

Ratio Decidendi

Legal Principle Established

While I take into account the matters referred to by Blue J in Miller v Miller (No 2), I do not consider that it is appropriate to make an order for the apportionment of the costs of the appeal. The clear position is that the appellants overwhelmingly succeeded on the appeal save for a narrow point of statutory construction that had no other consequences. For that reason, costs should follow the event with the appellants being awarded the costs of the appeal. That includes the costs incurred in relation to the taking of further expert evidence on the appeal and also the costs arising from the written submissions on the award of costs. Consideration – costs of the trial The respondents contend that they should be entitled to the costs of the trial up until the time that Mr Magryn significantly revised the details of his rectification proposal soon before the conference of experts. Mr Magryn had revised his proposal upon becoming aware that the footings for the fence posts had not been dug to the specified depth and also that the concrete was of inadequate quality. The appellants contend that any issues with Mr Magryn’s rectification proposal could have been resolved before trial if the respondents had been willing to consider rectification and had also addressed Mr Magryn’s proposal in their expert reports as required by the Rules. They also refer to their two settlement offers based upon rectification. There is substantial force in this submission. However, Mr Magryn had not identified the deficiencies in the footings when he inspected the site for the purpose of preparing his initial report. While the lack of depth in the footings may not have been readily detectable, later evidence suggests that the fact that the concrete crumbled when touched should have been readily ascertainable. However, Mr Magryn ultimately modified his proposal upon becoming aware of the defective footings. It was the modified proposal that was ultimately accepted by this Court on appeal (save for the use of timber cross members). The respondents’ expert, Mr Deek, had declined to respond to the modified proposal at the conference of experts but in his evidence on appeal he acknowledged that the proposal made sense from an engineering perspective. His only objections concerned matters of implementation. I did not find his objections to be persuasive. The respondents have referred to my decision that steel rather than timber cross members should be used as supporting their contention that it was not reasonable for them to agree to Mr Magryn’s final rectification proposal. I reject that contention. The evidence of Mr Magryn was that timber would eventually rot in the long term (perhaps 40 to 50 years) but steel would not be much more expensive. It was apparent that Mr Magryn did not hold a strong preference for the use of timber. In the circumstances, I considered it preferable to require the use of steel. I regard the choice between use of timber and steel as very much at the margin of decision making and not a basis to refuse to engage whatsoever with his proposal.