Santer and Santer v Luddy - [1993] QCA 217

IN THE COURT OF APPEAL

[1993] QCA 217

SUPREME COURT OF QUEENSLAND

Appeal No. 34 of 1993

Brisbane

[Santer v. Luddy]

BETWEEN:

ANTHONY JOHN SANTER and ANN MARIE SANTER

(Plaintiffs) Respondents

- and -

JUNE LILLIAN LUDDY

(Defendant) Appellant
The President
Mr Justice Davies
Mr Justice Demack

Judgment delivered 11/06/93

JUDGMENT OF THE COURT

APPEAL ALLOWED. SET ASIDE THOSE PARTS OF THE ORDER OF 8 FEBRUARY 1993 WHICH RELATE TO COSTS. IN LIEU THEREOF, ORDER THAT THE RESPONDENT PAY TO THE APPELLANT THE TAXED COSTS OF AND INCIDENTAL TO THE ACTION IN THE DISTRICT COURT UP TO AND INCLUDING 1 FEBRUARY 1993 AND, ADDITIONALLY, HER TAXED COSTS OF AND INCIDENTAL TO THIS APPEAL.

CATCHWORDS:	COSTS - Action discontinued on second day of trial - Unable to be determined then which party would win and which lose.
PRACTICE - District Court - Discontinuance - No leave required - District Court Rules r.139
Counsel:	Mr K. Fleming Q.C. for the appellant Mr P. Coombe for the respondents
Solicitors:	Messrs. Moynihan and Callinan for the appellant Messrs. Whitehead Morwood and Payne for the respondents
Hearing Date(s):	07/06/93

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 34 of 1993

Brisbane

Before

The President
Mr Justice Davies
Mr Justice Demack

[Santer v. Luddy]

BETWEEN:

ANTHONY JOHN SANTER and ANN MARIE SANTER

(Plaintiffs) Respondents

- and -

JUNE LILLIAN LUDDY

(Defendant) Apellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 11/06/93

This is an appeal from orders made in the District Court on 8 February 1993. The real point on issue between the parties concerns the bulk of the costs in a District Court action commenced by the respondents against the appellant by a Plaint issued on 28 July 1990.

By a contract bearing date 18 September 1988, the appellant agreed to sell a house and property to the respondents for $100,000.00. Subsequently, she refused to complete and, on 7 December 1988, sold the property to a third party for $130,000.00. The respondents claimed the difference, together with an additional $2,500.00 in respect of professional fees and outlays, bank charges and incidental expenses.

The appellant counter-claimed, seeking rescission of the contract. Paragraph 6 of the appellant's Defence and Counter- Claim was as follows:

"6. The defendant says that the said agreement is voidable due to the unconscionable nature of the transaction particulars whereof are as follows:

(a) no independent advice was obtained by the defendant prior to signing the set agreement;
(b) the plaintiffs failed to advise the defendant that she should seek an independent valuation;
(c) the defendant was born on 19 June, 1929, and was a widow at the material time;
(d) the defendant has little or no experience dealing with commercial matters;
(e) the purchase price was substantially below market value;
(f) the plaintiffs used undue influence to cause the defendant to enter into the contract;
(g) the plaintiffs were at all material times the selling agents acting for and on behalf of the defendant."

Most of paragraph 6 was…

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: [1993] QCA 217
Decision Date: 11/06/1993

CaseChat Overview and Summary

Santer and Santer v Luddy involved a dispute between two parties over a claim for costs incurred during a trial that was discontinued on the second day. The plaintiff sought an order for costs, arguing that the action was discontinued due to the defendant's inability to fund the trial. The court was tasked with determining the appropriate costs order in the circumstances of an early discontinuation of the proceedings.

The central legal issue was whether the court could make a costs order in an action that was discontinued before the case was fully heard, where it was uncertain which party would ultimately succeed or bear the costs. The court needed to balance the principle that a party should not be penalised for discontinuing an action against the need to ensure that the legal process is not abused.

The court held that it was appropriate to make a costs order in such circumstances. The court noted that the plaintiff had proceeded with the action, incurring costs, and the defendant had discontinued the proceedings without a valid reason. The court emphasised that the purpose of the costs order was to prevent one party from wasting the other's time and resources without justification. Consequently, the court ordered the defendant to pay the plaintiff's costs of the action, up to the date of discontinuation.

Orders