Russo v Buck - [2007] SASC 423

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
RUSSO v BUCK & ANOR
[2007] SASC 423
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Layton)
5 December 2007
GUARANTEE AND INDEMNITY - THE CONTRACT OF GUARANTEE - CONSTRUCTION AND EFFECT - EXTENT OF LIABILITY
Appeal against order by trial judge dismissing claim to set aside contract of loan and mortgage – whether trial judge erred in making particular findings of fact – whether contract, as performed, was illegal and whether illegality prevented respondents from recovering on the contract – discussion of principles relating to illegality of contract – where argument based on illegality not raised on the pleadings and not argued at trial – Held: no error by trial Judge in findings of fact – failure to raise illegality argument at trial precludes appellant from raising it on appeal – no relevant illegality demonstrated in any event – appeal dismissed.

PROCEDURE - COSTS - APPEALS AS TO COSTS
Appeal against order by trial Judge that appellant pay half of the respondents' costs of the action on an indemnity basis – mortgage agreement contained a clause requiring the appellant to indemnify the respondents in respect of any challenge to or resistance of the respondents’ rights under the mortgage – appellant successful in part at first instance – whether question of costs should have been delayed until determination of what, if anything, the appellant owed the respondents under the loan agreement or under the mortgage – discussion of principles relating to interference with a costs order – Held: no error, unreasonableness or injustice demonstrated – appeal as to costs dismissed.
Fair Trading Act 1987 (SA) s 56; Supreme Court Civil Rules 2006 (SA) r 264, referred to.
University of Woollongong v Metwally (No 2) (1985) 59 ALJR 481; Water Board v Moustakas (1988) 180 CLR 491; Holman v Johnson (1775) 1 Cowp 341; Waugh v Morris (1873) LR 8 QB 202; Southern Resources Ltd v Residues Treatment & Trading Co Ltd (1990) 56 SASR 455, applied.
Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410, discussed.
Seal v Malaugh Holdings (No 2) Pty Ltd [2007] SASC 388; Suttor v Gondowda Pty Ltd (1950) 81 CLR 418; Coulton v Holcombe (1986) 162 CLR 1; O'Brien v Komesaroff (1982) 150 CLR 310; Wetherell v Jones (1832) 3 B & Ad 221; Ashmore Benson Pease & Co Ltd v AV Dawson Ltd [1973] 1 WLR 828; TP Rich Investments Pty Ltd v Calderon [1964] NSWR 709; St John Shipping Corporation v Joseph Rank Ltd [1957] 1 QB 267, considered.

RUSSO v BUCK & ANOR
[2007] SASC 423
Full Court: Duggan, Bleby and Layton JJ

DUGGAN J. I agree that the appeal should be dismissed for the reasons prepared by Bleby J.
BLEBY J.
Background
For the purposes of this appeal, the relevant facts are within a relatively narrow compass. At trial there were other issues. It is not necessary to recount in detail the facts relating to those issues, as they are not the subject of this appeal. However, it is necessary to give a brief overview of the nature of the proceedings. Unless otherwise indicated, the facts referred to below were either not in dispute at the trial or were facts found by the trial Judge and not disputed on the appeal.
The appellant, Mr Russo, entered into a loan agreement on or about 15 March 2001 whereby the respondents to the appeal, Mr and Mrs Buck, were to advance to Mr Russo the sum of $80,000 for a period of six months (“the first loan”). Repayment by Mr Russo of the first loan was secured by a second mortgage over some real property owned by Mr Russo at Aldinga Beach (“the land”).
The first loan was arranged through the third defendant to the action, Private Funds Management Pty Ltd (“PFM”), as agent for Mr and Mrs Buck. Ms Conn, the fourth defendant in the action, was a director of PFM and the person who managed PFM’s business. PFM appears to have been trustee for the A Conn Family Trust, on whose behalf it appears to have conducted its business.
The second mortgage was registered and the loan monies were paid on 16 March 2001. Of the money advanced on that day, $42,753.48 was paid to the fifth defendant, Mr Buttigieg, by a direction signed by Mr Russo. About $3,000 was used to pay various fees and charges associated with obtaining the loan. $3,000 was paid to Mr Russo. Approximately $30,000 was used to pay creditors of Mr Russo so as to remove certain charges and caveats on the title to the land and to ensure that council rates on the land were paid.
Mr Buttigieg was a friend of Mr Russo. He needed money for the purposes of his partner’s business. Mr Russo agreed to help by becoming the borrower and providing the necessary security.
One of Mr Russo’s contentions at trial was that Mr Buttigieg was in fact the borrower and that Mr Russo saw himself merely as a guarantor. He regarded the borrowing and the repayments as Mr Buttigieg’s concern. Nevertheless, the trial Judge found, and subject to one contention the subject of this appeal, it is now not contested, that Mr Russo was the borrower, that he became liable on the contract of loan as borrower and was bound by the second mortgage that he granted in favour of Mr and Mrs Buck to secure the loan.
As was contemplated in the contract of loan, the first loan was rolled over for two further terms of six months. Almost 15 months after the making of the first loan, a second loan agreement was entered into for a further advance of $70,000. That was negotiated by Mr Buttigieg through PFM. The trial Judge held that this loan was unenforceable solely by reason of the conduct of Mr Buttigieg in forging the signature of Mr Russo on the loan agreement. There is no appeal by Mr and Mrs Buck against that finding. That transaction has no bearing on the issues in this appeal, other than in respect of the appeal on costs.
Mr and Mrs Buck sought possession of the land following default by Mr Russo under the first and second loan agreements and the mortgage. Mr Russo then brought this action seeking declaratory and other relief in order to avoid delivery up of possession of the land to Mr and Mrs Buck, and seeking to have the first and second loan agreements and the mortgage set aside. In addition to the matters to which I have already referred, in seeking to avoid liability under the loan agreements for the first and second loans, Mr Russo relied on alleged misleading and deceptive conduct of the defendants within the meaning and for the purposes of s 56 of the Fair Trading Act 1987 (SA), misrepresentation by the defendants and unconscionable conduct. He also claimed damages against the defendants. All those claims were dismissed by the trial Judge and are not the subject of any appeal.
The facts giving rise to the appeal
As previously noted, the monies constituting the first loan were paid on Friday 16 March 2001. On that day cheques were either drawn by PFM on PFM’s trust account, or bank cheques were obtained by PFM and debited to that account. However, the cheque from Mr and Mrs Buck providing the funds to PFM for the purposes of the loan was not received and banked by PFM until Monday 19 March 2001, three days later. At trial, Mr Russo claimed that the advance could not have been made by Mr and Mrs Buck, as they had provided no funds to PFM on 16 March 2001, when the loan was actually made. An amendment to the plaintiff’s statement of claim giving effect to that contention was not made until well into the defendants’ case at the trial and was only made after tender of the relevant documents and after oral evidence of the defendants which established the timing of the relevant events.
Mr Russo’s plea was that Mr and Mrs Buck had never paid the sum of $80,000 or any money to the plaintiff under the loan agreement, and that if the court found that the sum of $80,000 or any part thereof was paid to or at the direction of Mr Russo, it was money paid by clients of PFM other than Mr and Mrs Buck, and without the knowledge and consent of those clients.
At the trial Ms Conn gave evidence that a Mr Michael Sultana was another investor client of PFM and that the funds used to effect the advance to Mr Russo under the loan agreement comprised, in part, PFM’s own funds, and, in part, funds held by PFM for Mr Sultana. Both Ms Conn and Mr Sultana gave evidence concerning an agreement between PFM and Mr Sultana whereby PFM was authorised by Mr Sultana to use monies held by PFM on his behalf provided that it did not affect Mr Sultana’s own investment activities. Ms Conn said that, although not obliged to do so, she would usually contact Mr Sultana prior to using his funds, but she did not recall specifically whether she spoke with Mr Sultana on this occasion and advised him that she was using funds held by PFM to settle the advance on the first loan.
Mr Sultana said that Ms Conn would always contact him on behalf of PFM prior to using funds held on his behalf and that that was part of the arrangement. He could not recall whether Ms Conn specifically contacted him in relation to the use of funds for this transaction.
Both witnesses were giving evidence at very short notice about a single transaction which had occurred more than five and a half years previously.
The trial Judge’s relevant findings and conclusion
The trial Judge accepted Ms Conn’s evidence and that of Mr Sultana, that Ms Conn had a standing arrangement with Mr Sultana under which she was permitted to use funds subject to his direction to cover another’s need for funds for a short period. However, no finding was made as to what Ms Conn actually did or intended to do in relation to Mr Sultana’s funds on the occasion in question. The Judge considered that the evidence was not clear enough to make a finding. In his view, that did not matter.
The trial Judge concluded:
The fact that for a period of several days the loan was funded from an unidentified source does not alter things. Once the Bucks’ funds became available, those funds became the source of the advance to Mr Russo. But in the interim period, as between Mr Russo and the Bucks, the Bucks are to be treated as the source of the funds advanced, even if the Bucks were liable to repay to someone else the initial advance of the moneys loaned and to pay interest on that amount for the first few days.
…
It may be that Ms Conn used the funds of another client without proper authority from that client. It may be that she has not accounted to another client for interest in respect of funds provided to Mr Russo for the first few days. Ms Conn’s evidence indicates that she dealt with client funds rather casually in some respects. But that does not alter the contractual position as between Mr Russo and the Bucks. In one way or another, acting on behalf of the Bucks, Ms Conn provided the funds to or at the direction of Mr Russo to enable the Bucks to meet their obligation to Mr Russo. The fact (if it is the case) that she acted in breach of trust, and used client funds without proper authority, does not mean that as between Mr Russo and the Bucks the funds are not to be treated as advanced by the Bucks.
The claim that Mr and Mrs Buck never advanced the sum of $80,000 to Mr Russo was rejected. The Judge held that Mr and Mrs Buck were entitled to claim repayment of the first loan even if the monies advanced came from another source pending receipt by PFM of the funds from Mr and Mrs Buck several days after the advance was made.
Mr Russo appeals against the relevant findings and conclusion of the trial Judge.
The costs order
The trial Judge dismissed Mr Russo’s claim that the contract of loan and mortgage be set aside. He dismissed the claims made by Mr Russo against PFM and Ms Conn. Because there was evidence that some payments had been made by Mr Buttigieg to Mr and Mrs Buck and because the second purported contract of loan had been set aside, the Judge ordered that the determination of the amount due and owing, if any, by Mr Russo to Mr and Mrs Buck pursuant to the first contract of loan, or otherwise due and payable and secured by the memorandum of mortgage, be referred to a master.
After hearing further argument on the question of costs, the Judge ordered that Mr Russo pay the costs of the action of PFM and Ms Conn as between party and party, and that he pay one half of the costs of the action of Mr and Mrs Buck on the basis of an indemnity.
Mr Russo appeals against the order for costs in favour of Mr and Mrs Buck.
The substantive appeal
The grounds of appeal merely allege that the trial Judge erred in making the several relevant findings that he did. No other grounds are alleged.
On the hearing of the appeal, however, the only finding of fact challenged by the appellant was the acceptance by the trial Judge of the evidence of Ms Conn and Mr Sultana that there was a standing arrangement between them under which PFM was permitted to use funds subject to Mr Sultana’s direction to cover another client’s need for funds for a short period. In addition, Mr Russo sought to argue that the contract, as performed, was illegal, thereby preventing Mr and Mrs Buck from recovering on the contract.
The plea of illegality formed no part of the grounds of appeal, nor was it pleaded by the plaintiff in his statement of claim or argued before the trial Judge. Had it been pleaded and properly particularised, a much more detailed factual enquiry concerning the actions of PFM and Ms Conn would have been required if Mr and Mrs Buck were to be given any reasonable opportunity of defending their position. That did not occur.
In University of Wollongong v Metwally (No 2)[1] the High Court in a joint judgment[2] said:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had and (sic) opportunity to do so.
[1] (1985) 59 ALJR 481, (1985) 60 ALR 68.
[2] Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ, at 483, 71.
The High Court reaffirmed that position in Water Board v Moustakas:[3]
More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.[4]
[3] (1988) 180 CLR 491 at 497, Macon CJ, Wilson, Brennan and Dawson JJ, [1988] HCA 12 at [13]-[14]. See also Seal v Malaugh Holdings (No 2) Pty Ltd [2007] SASC 388 at [26]-[28].
[4] See Suttor v Gundowda Pty. Ltd. (1950) 81 CLR 418 at 438; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483, (1985) 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7-8; O’Brien v Komesaroff (1982) 150 CLR 310 at 319.
It follows that for this reason alone the appellant’s argument as to illegality must be rejected. However, it must also be rejected for other reasons.
Relief from performance of a contract on the ground of illegal conduct in its performance, even though that illegal conduct is not required by the contract, is part of the broader common law principles governing denial of relief on public policy grounds. The general principle was referred to by Lord Mansfield in Holman v Johnson:[5]
No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa [from a base cause], or the transgression of a positive law of this country, there the Court says he has no right to be assisted.
[5] (1775) 1 Cowp 341 at 343, 98 ER 1120 at 1121.
In the first place, if illegality was to be relied on, the appellant bore the onus of proof of illegal conduct on the part of PFM and Ms Conn. That would necessarily require proof that the money was paid by PFM out of funds belonging to some other person without the authority of that person. It was clear that the trial Judge was in no position to make any such finding and the evidence would not permit it. On the evidence it was possible that Ms Conn did not have authority from one or more of the clients of PFM to apply their monies in payment of the contractual obligation incurred by Mr and Mrs Buck. However, possibility is not proof, and proof of any illegality was therefore absent.
In the second place, it is not every illegality of performance that will preclude recovery under a contract which, by its terms, can be lawfully performed. Enforceability or otherwise of such a contract is a matter of public policy. Lord Blackburn, delivering the judgment of the Court, said in Waugh v Morris:[6]
We quite agree, that, where a contract is to do a thing which cannot be performed without a violation of the law it is void, whether the parties knew the law or not. But we think, that in order to avoid a contract which can be legally performed, on the ground that there was an intention to perform it in an illegal manner, it is necessary to shew that there was the wicked intention to break the law; and, if this be so, the knowledge of what the law is becomes of great importance.
[6] (1873) LR 8 QB 202 at 208.
In this case there was no evidence to suggest that Mr and Mrs Buck were party to any illegality, if it occurred.
In Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd[7] an institution was unlawfully trading as a bank in contravention of the relevant banking legislation. It was nevertheless able to enforce its loan contracts in order to protect the interests of its depositors. The resolution of the case turned, to a large extent, on the nature and effect of the Banking Act 1959 (Cth). Nevertheless, Gibbs ACJ said:[8]
Further it cannot be said that the contract was performed for any illegal purpose. There is of course no suggestion that the money was borrowed for an illegal purpose, and the fact that the contract was made in the course of the unlawful banking business does not mean that the contract was made in order that the unlawful purpose of carrying on a banking business without authority could be achieved or carried out. Once it is held that neither the making nor the performance of the contract was unlawful, the fact that the contract was made and performed in the course of the conduct of an unlawful business provides no ground for denying relief to the respondent. The illegality then is something merely casual or adventitious. The principle applicable is that stated in Wetherell v. Jones[9] by Lord Tenterden C.J.:
"Where a contract which a plaintiff seeks to enforce is expressly, or by implication, forbidden by the statute or common law, no court will lend its assistance to give it effect; and there are numerous cases in the books where an action on the contract has failed, because either the consideration for the promise or the act to be done was illegal, as being against the express provisions of the law, or contrary to justice, morality and sound policy. But where the consideration and the matter to be performed are both legal, we are not aware that a plaintiff has ever been precluded from recovering by an infringement of the law, not contemplated by the contract, in the performance of something to be done on his part."
[7] (1978) 139 CLR 410.
[8] Ibid at 417-18, [12].
[9] (1832) 3 B & Ad 221 at 225-226, 110 ER 82 at 84.

Illegal performance of a contract will only invalidate a claim under the contract if there is an intention to engage in the unlawful conduct from the outset.[10] If an illegal act was performed in the course of performance without that intention, the incidental commission of such an act will not preclude enforcement. In St John Shipping Corporation v Joseph Rank Ltd[11] a carrier deliberately overloaded its vessel, but that did not render the contract of carriage unenforceable. There was no proof that the overloading was contemplated when the contract was made. By analogy in application to this case, even if the conduct of PFM or Ms Conn in drawing the cheques on the trust account was unlawful, it was, in the words of Gibbs ACJ “merely casual or adventitious”.[12] There is certainly nothing to suggest that it was ever intended by Mr and Mrs Buck. Therefore, even assuming some unlawful action on the part of PFM or Ms Conn, it does not follow that Mr and Mrs Buck would be precluded from enforcing the contract.
[10] See for example Ashmore Benson Pease & Co Ltd v AV Dawson Ltd [1973] 1 WLR 828, [1973] 2 All ER 856; TP Rich Investments Pty Ltd v Calderon [1964] NSWR 709.
[11] [1957] 1 QB 267.
[12] Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 at 417-418.
The balance of the appellant’s argument, namely that the money lent was not that of Mr and Mrs Buck, must also fail for the reasons expressed by the trial Judge. How Mr and Mrs Buck or their duly appointed agent provided the funds was of no concern to Mr Russo. The contractual position between the parties was clear. Funds were provided to Mr Russo by the agent of Mr and Mrs Buck in fulfilment of the terms of the contract of the loan. The obligation of Mr Russo was to repay the monies in accordance with the terms of the contract.
Accordingly, the appeal on the substantive issue must be dismissed.
The appeal on costs
In his reasons for judgment the trial Judge conveniently summarised the issues presented at trial, not all of which it has been necessary to refer to in these reasons. He summarised them as follows:
In summary, these are the issues. First, whether the first contract of loan is enforceable between the Bucks and Mr Russo. Second, the legal consequence of the fact that PFM received the funds from the Bucks after it made the first advance to Mr Russo. Third, whether Mr Russo authorised or agreed to the “roll overs” in September 2001 and March 2002, and if he did not, the legal consequence of that. Fourth, whether Mr Russo agreed to the second advance of $70,000, and the legal consequence of the fact that the advance was made the same day as the Buck’s cheque to PFM was received. Fifth, whether Mr Russo agreed to the further “roll overs” of the loan or loans, and whether, after the further advance, there was a single loan or two separate loans. Sixth, the effect of the order for possession on Mr Russo’s entitlement to raise the issues that he raises.
Mr Russo also claimed damages and other relief from PFM and Ms Conn. As previously noted, Mr Russo commenced these proceedings in response to an application by Mr and Mrs Buck for possession of the land in the exercise of the powers contained in the second mortgage.
In his reasons for judgment on costs, the trial Judge noted that if, as a result of his order, any amount is still due under the first loan agreement or under the mortgage, Mr and Mrs Buck would be entitled to possession of the land unless that amount is paid. He acknowledged the possibility that, as a result of payments which had been made, nothing was owing under the first loan agreement. He also noted, however, that if an order for costs was made against Mr Russo, and the costs are secured by the mortgage, the amount of costs would thereby become secured also.
Before the trial Judge and on appeal it was argued on behalf of Mr Russo that the question of costs should not be decided until a Master had determined what, if anything, was owing under the first loan agreement or under the mortgage. The trial Judge’s response was as follows:
I do not accept that submission. Mr Russo attacked the validity or binding effect of the two loan agreements and of the mortgage. He has had a limited success. That remains the case even if it ultimately turns out that nothing is now owing under the first loan agreement. Mr Russo could have limited his case to a claim that nothing was now due under the first loan agreement, and that nothing was secured by the mortgage because the second loan agreement did not bind him. He chose to make a wider attack, embracing an attack on the validity or binding effect of the first loan agreement and of the mortgage.
For those reasons a conclusion by the Master that nothing is owing under the first loan agreement, or secured by the mortgage, will not alter the fact that Mr Russo has had only a partial success with the claims that he advanced.
Clause 41 of the mortgage relevantly provides:
INDEMNITY
At all times during the continuance of this Mortgage the Mortgagor shall indemnify and keep indemnified the Mortgagee against any liability, claim, action, suit, cost or expense (including legal costs on a solicitor and own client basis) to, by or of any person (including the Mortgagor) in respect of:-
41.1any act or omission of the Mortgagor or any of the employees of the Mortgagor arising out of or in connection with this Mortgage;
…
41.7the exercise, non-exercise, purported exercise or delay in exercising any of the rights or powers of the Mortgagee or rights or powers of a Receiver or any attorney of the Mortgagor under this Mortgage; or
…
As the trial Judge pointed out, the incurring of costs by Mr and Mrs Buck was in respect of the exercise of their powers by instituting proceedings for possession, as Mr Russo’s claims were a challenge to or in resistance of the exercise of their rights under the mortgage. However, even apart from that clause the trial Judge considered that Mr Russo should pay the bulk of the costs of the action. The trial Judge considered that the action was, in substance, an attack on the entitlement of Mr and Mrs Buck to exercise their powers under the mortgage. The attack failed, as did the attack on the first loan agreement.
The trial Judge continued:
There are other factors that influence me in coming to my conclusion. As I have already said, Mr Russo’s Statement of Claim raised a confusingly varied series of claims, a number of which are plainly misconceived. He satisfied me that the second loan agreement was forged on the basis of evidence some of which was not clearly foreshadowed before the trial, or even in Mr Sallis’s opening, evidence which in part seems to have become available almost by luck and late in the piece. The claims against PFM and Ms Conn were, in my opinion, misconceived. I realise that it will be extremely difficult to separate the costs of PFM from those of the Bucks.
It was for those reasons that the Judge considered that, regardless of the provisions of the mortgage, Mr Russo should pay all the costs of PFM and Ms Conn as between party and party and one half of the costs of Mr and Mrs Buck as between party and party. When taking into account the indemnity provisions of the mortgage, the Judge decided that Mr Russo should pay one half of the costs of Mr and Mrs Buck on the basis of an indemnity.[13] In doing so the Judge recognised that it was not appropriate to order that Mr Russo pay all of the costs of Mr and Mrs Buck, and that the order should reflect the fact that Mr Russo had some success.
[13] See r 264(5)(b), Supreme Court Civil Rules 2006.
Counsel for Mr Russo on appeal maintained the argument that the award of costs should depend upon the ultimate outcome of the enquiry by the Master. Alternatively, it was argued that there should be no order as to costs between Mr Russo and Mr and Mrs Buck, or that Mr Russo should be given some indemnity against his liability by an order against PFM and Ms Conn in respect of the successful argument on the second loan.
The last point can be dealt with simply. Mr Russo has not appealed against the order of costs in favour of PFM and Ms Russo. They are not parties to this appeal. Furthermore, the only reason that the second contract of loan was unenforceable was as a consequence of the forgery of Mr Buttigieg, a matter which did not reflect in any way on the conduct of PFM or Ms Conn.
As to the balance of the argument, there was no suggestion that Mr and Mrs Buck either knew of or were in any way complicit in the forgery of Mr Buttigieg.
As was pointed out by the trial Judge in his reasons for judgment on Mr Russo’s claims, Mr Buttigieg was an undischarged bankrupt. Although a party, he did not file a defence. He appeared in person at the trial, supporting Mr Russo by and large and assisting Mr Russo’s case – assistance on which Mr Russo sought to rely, not withstanding that, in the opinion of the trial Judge, Mr Buttigieg gave his evidence “in a confusing and unsatisfactory manner”, and that on crucial matters “he was more concerned to say things that would assist Mr Russo’s case then he was to tell the truth”.
An appellate court will be slow to interfere with a discretionary order made in respect of costs. It is for the appellant to demonstrate an identifiable error or that the order was so unreasonable or unjust as to require the appellate court to substitute its own discretion for that of the trial Judge.[14]
[14] Southern Resources Ltd v Residues Treatment & Trading Co Ltd (1990) 56 SASR 455 at 480, Jacobs ACJ, Prior and Mullighan JJ.
I can detect no error in the approach of the trial Judge, and upon a proper characterisation of the nature and effect of the proceedings, there was no unreasonableness or injustice in the trial Judge’s order. I would therefore dismiss the appeal as to costs.
Conclusion
For these reasons, in my opinion the appeal should be dismissed.
LAYTON J: I agree that the appeal should be dismissed for the reasons given by Bleby J.