Russo v Buck & Ors (No 5) - [2010] SASC 27

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
RUSSO v BUCK & ORS (No 5)
[2010] SASC 27
Reasons of Judge Lunn a Master of the Supreme Court
16 February 2010
PROCEDURE
Application to appoint representative for deceased defendant under 87R 30.03 - no administration as yet of the deceased's estate - costs order made jointly in favour of deceased defendant and another defendant on which an order for lump sum fixation is sought - held 87R 30.03 does not extend to appointing a representative who is seeking a judgment for costs - application refused.

PROCEDURE
Application for lump sum fixation under 6R 271(6)(c) - principles to be applied - held no lump sum fair to the plaintiff could be fixed because of the difficulty in apportioning costs between different defendants and costs orders in differing terms - application refused.

PROCEDURE
Interim allocaturs - application under 6R 274(2)(b)(ii) for interim allocatur pending finalisation of adjudication - held interim order for payment on account of the costs to issue for $59,567.

RUSSO v BUCK & ORS (No 5)
[2010] SASC 27
Reasons on defendants’ applications for fixing lump sum costs and for interim allocaturs.

JUDGE LUNN: After a long and hard fought trial on 6 May 2007 the Chief Justice made the following costs order:
1That the plaintiff, Mr Russo, pay the costs of the action of the defendants, Private Funds Management Pty Ltd and Annette Conn, as between party and party.
2That the plaintiff, Mr Russo, pay one half of the costs of action of the defendants, Eric Geoffrey Buck and Elizabeth Ann Buck, on the basis of an indemnity.
3That this order is made subject to any specific costs orders made to date.
In the action the first to fourth defendants had been represented by the same solicitors and counsel and there has apparently been little, if any, differentiation in the work done by those solicitors for each of the respective defendants.
The first defendant, Eric Buck, died on 2 June 2009. As yet there has been no grant of administration over his estate.
Application to appoint a representative for the deceased defendant.
On 10 December 2009 the defendants’ solicitors took out an application that “the first defendant ….. cease to be a party to this action”. That application has not been pursued. Instead, the defendants have pursued by oral variation an application under 87R 30.03 that the second defendant be appointed to represent the estate of the first defendant for the purpose of these proceedings. 87R 30.03 provides:
30.03(1) Where a deceased person was before his death interested, or where the estate of a deceased person has an interest, in a matter in question in any proceedings but there is no representative, the Court may on such notice (if any) as it thinks fit:
(a)proceed in the absence of a person representing the estate;
(b)appoint a person to represent the estate for the purpose of the proceedings.
(2)An order made in the proceedings shall unless otherwise ordered by the…

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.

Continue reading Russo v Buck & Ors (No 5)

Details

AGLC: Russo v Buck & Ors (No 5) [2010] SASC 27
Case: [2010] SASC 27
Decision Date: 16 February 2010

CaseChat Overview and Summary

In the Federal Circuit Court, the plaintiff, Russo, brought an action against multiple defendants, including Buck and others, with the deceased defendant being one of them. The primary disputes involved the procedural aspects of the case, including the appointment of a representative for the deceased defendant and the fixation of a lump sum for costs. The court had to address whether a representative could be appointed under section 87R 30.03 for a deceased defendant who had not yet had an estate administered, and whether a lump sum for costs could be fixed under section 6R 271(6)(c) given the complexity of cost apportionment among the defendants. Furthermore, the court considered an application for interim allocaturs pending the finalisation of adjudication.

The legal issues before the court were whether section 87R 30.03 allowed for the appointment of a representative seeking a judgment for costs, and if so, who would bear the costs. Additionally, the court needed to determine the principles to apply in fixing a lump sum for costs when there was significant difficulty in apportioning costs between different defendants. Lastly, the court had to decide whether an interim allocatur for payment on account of costs could be issued under section 6R 274(2)(b)(ii).

The court found that section 87R 30.03 did not extend to appointing a representative who was seeking a judgment for costs, and thus the application was refused. In considering the lump sum fixation, the court held that given the difficulty in apportioning costs between the different defendants and the varying terms of the costs orders, no lump sum fair to the plaintiff could be fixed. Consequently, the application for lump sum fixation was also refused. Regarding the interim allocaturs, the court granted an order for payment on account of costs to issue for $59,567 pending the finalisation of the adjudication.

The final orders made by the court included the refusal of the application to appoint a representative for the deceased defendant and the refusal of the application for lump sum fixation. An interim order for payment on account of the costs to issue was granted in the amount of $59,567.

Orders