Sazzi v Chang (No 3) - [2014] SADC 48

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SAZZI v CHANG AND ORS (No 3)
[2014] SADC 48
Judgment of His Honour Judge Slattery
21 March 2014
PROCEDURE - COSTS
Costs – discretion of the Court – defendants sought an order for elevated amount of costs – letter of offer sent by defendants to plaintiff not received until just prior to commencement of the trial - whether letter of offer should be taken into account – defendants contend that no costs orders should be made in favour of a plaintiff that had achieved a judgment upon one claim in the sum of $15,210.30 inclusive of interest and had failed on a number of its claims.
Held: Letter of offer from defendants to the plaintiff came too late in the proceedings – defendant entitled to an order for costs on the counterclaim to be taxed or agreed – plaintiff entitled to an order for costs in its favour of the amount of 25% of costs of its action to be taxed or agreed.
District Court Act sub-s 42(2) ; District Court Rules 6R 263(2)(h), referred to.
Cretazzo v Lombardi (No 2) (1975) 13 SASR 4; Calderbank v Calderbank [1975] 3 All ER 333; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, applied.
BHP Billiton Limited v Parker [2012] SASCFC 73; Nominal Defendant v Dighton (No 2) [2012] SASCFC 97 , considered.

SAZZI v CHANG AND ORS (No 3)
[2014] SADC 48
JUDGE SLATTERY

The judgment entered in favour of the plaintiff, including interest totals the sum of $15,210.30. The defendants have succeeded on their counterclaim to the extent of $8,910.43 and this sum been set off against the claim of the plaintiff to which amount interest has been applied to achieve the sum of $15,210.30. Both parties seek orders for costs. The defendants seek an order that no order for costs be made in favour of the plaintiff and that the plaintiff pay the defendants’ costs on an indemnity basis, or alternatively, on a party/party basis up to and including 30 August 2013 and thereafter on an indemnity basis or alternatively on a party and party basis.
Both parties agree that costs should follow the event and it is on that basis that both parties seek orders for costs. However, there are a number of bases upon which the defendants seek an order for an elevated amount of costs. I will deal with each in turn.
The defendants’ initial contentions were that, on their calculations, the plaintiff did not achieve a judgment of an amount of $15,000.00 or more. The defendants referred to District Court Act sub section 42(2) and District Court Rules 6R 263(2)(h). Based upon the calculations that I have made, this ground is no longer available to the defendants.
The second contention of the defendants in this regard was that the plaintiff was really only successful on one issue in the litigation, namely liability in relation to the defendants taking possession of the goods and…

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 Sazzi v Chang (No 3)

Details

AGLC: Sazzi v Chang (No 3) [2014] SADC 48
Case: [2014] SADC 48
Decision Date: 21 March 2014

CaseChat Overview and Summary

The case of Sazzi v Chang (No 3) involved a dispute where the defendants sought an order for an elevated amount of costs in proceedings brought by the plaintiff. The dispute was heard by the court, which needed to decide on the appropriate costs to be awarded to both parties. The central issue was whether a letter of offer, sent by the defendants to the plaintiff just prior to the trial, should be taken into account in the costs determination. The defendants argued that no costs should be awarded to the plaintiff given that while the plaintiff had achieved a judgment on one claim for $15,210.30 inclusive of interest, it had failed on a number of other claims.

The court held that the letter of offer from the defendants to the plaintiff was received too late in the proceedings to be considered. The court found that the defendants were entitled to an order for costs on the counterclaim to be taxed or agreed. Conversely, the plaintiff was awarded an order for costs in its favour, amounting to 25% of the costs of its action to be taxed or agreed. The court's decision was based on the late receipt of the letter of offer and the outcomes of the respective claims made by the parties.

Orders