Schuller v S J Webb Nominees Pty Ltd (No 2)

[2015] SASCFC 190

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Civil)

SCHULLER v S J WEBB NOMINEES PTY LTD (NO 2)

[2015] SASCFC 190

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Stanley and The Honourable Justice Lovell)

10 December 2015

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT

PROCEDURE - COSTS - SECURITY FOR COSTS

This is an application for costs.

In this matter, the Court dismissed the appeal. The respondent now seeks an order that the appellant pay the respondent’s costs of the appeal. It also seeks an order that the amount of $15,000 paid into court by the appellant as security for the costs of the appeal pursuant to an order made by a Judge of this Court, be paid to the respondent’s solicitors. The appellant seeks an order that the respondent should have 80 per cent of its costs of the appeal on a party/party basis.

Held (the Court):

1. The appellant is to pay the respondent its costs of and incidental to the appeal to this Court to be agreed or taxed.

2. The amount of $15,000 and interest thereon paid into court by the appellant as security for the costs of the appeal is to be paid out to the respondent’s solicitors.

Supreme Court Act 1935 (SA) s 40(1); Supreme Court Civil Rules 2006 (SA) r 263(1), r 263(2); Civil Liability Act 1936 (SA) s 37, referred to.
Cretazzo V Lombardi (1975) 13 SASR 4, applied.
C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390, considered.

SCHULLER v S J WEBB NOMINEES PTY LTD (NO 2)
[2015] SASCFC 190

Full Court:  Gray, Stanley and Lovell JJ 

THE COURT:

1. In this matter, the court dismissed the appeal.  The respondent seeks an order that the appellant pay the respondent’s costs of the appeal.  It also seeks an order that the amount of $15,000 paid into court by the appellant as security for the costs of the appeal pursuant to an order made by a Judge of this Court, be paid to the respondent’s solicitors.  The appellant seeks an order that the respondent should have 80 per cent of its costs of the appeal on a party/party basis.

2. The award of costs is in the discretion of the court and the court may award costs on any basis it considers appropriate.[1]  As a general rule, costs follow the event.[2]   That general rule is subject to specific rules to the contrary and to prescribed exceptions, none of which are relevant to this case.[3]  The court’s discretion as to costs is absolute and unfettered, except that it must be exercised judicially, not arbitrarily or capriciously, and it cannot be exercised on grounds unconnected with the litigation.[4]

   [1]    Supreme Court Act 1935 (SA) s 40(1).

   [2] 6SCR 263(1).

   [3] 6SCR 263(2).

   [4]    Cretazzo v Lombardi (1975) 13 SASR 4 per Bray CJ at 11.

3. In this matter, while the appeal was dismissed, the respondent was unsuccessful in pursuing a notice of contention as to the operation and construction of s 37 of the Civil Liability Act 1936 (SA). This argument occupied a not insignificant part of the hearing of the appeal.

4. In addition, the appellant was successful in challenging the notional award of damages assessed by the trial judge.

5. Notwithstanding these factors, the Court considers that this is not an appropriate case for the dissection of issues and arguments heard on the appeal for the purpose of departing from the general rule.  The appeal was brought in the face of clear High Court authority that no duty was owed given the facts of this case.[5]  In the circumstances, we are satisfied that the appropriate order is that the appellant pay the respondent the costs of and incidental to the appeal. 

   [5]    CAL No. 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47, (2009) 239 CLR 390.

6. In circumstances where the appellant paid the sum of $15,000 into court as security for the costs of the appeal pursuant to an order made by a Judge of this Court, and the appeal was dismissed, we do not consider there is any reason not to order the payment out of court of that sum to the respondent’s solicitors.  Accordingly, we make an order in those terms. 

7. The court makes the following orders:

   1.The appellant is to pay the respondent its costs of and incidental to the appeal to this Court to be agreed or taxed; and

   2.The amount of $15,000 and interest thereon paid into court by the appellant as security for the costs of the appeal pursuant to the order of Justice Nicholson made on 29 January 2015 is to be paid out to the respondent’s solicitors