Scott v Williams & Ors (No. 2) No. Scciv-98-1663 - [2003] SASC 32

SCOTT V WILLIAMS & ORS (NO. 2)
[2003] SASC 32
Civil

LANDER J. Originally proceedings were brought in this matter against five defendants. The plaintiff compromised his action against all defendants except the fourth defendant. I heard the trial of the action between the plaintiff and the fourth defendant and on 20 December 2002 I delivered my reasons for judgment[1] in which I found for the plaintiff.
[1] Scott v Williams & Ors [2002] SASC 424
On 15 January 2003 I entered judgment for the plaintiff against the fourth defendant in the sum of $500,000.
At the same time I heard applications by both the plaintiff and the defendant for various orders for costs.
I dismissed the plaintiff’s application that the fourth defendant pay the plaintiff’s costs in relation to the issues of insolvency and incurring debts on an indemnity basis. I also dismissed the fourth defendant’s application that the plaintiff pay the fourth defendant’s costs in relation to the issue of incurring debts on an indemnity basis.
I ordered the plaintiff to pay the fourth defendant’s costs in relation to the plaintiff’s amendments to the summons, the statement of claim, the more explicit statement of claim and the second more explicit statement of claim on a party and party basis.
I reserved for decision some further applications. The plaintiff sought an order that the fourth defendant pay the plaintiff’s costs of action. The fourth defendant, on the other hand, applied for an order that the plaintiff pay the fourth defendant’s costs of action from 26 June 2001.
I also reserved, for decision, the fourth defendant’s application that the plaintiff pay the fourth defendant’s costs in relation to the Ka Me Wa Australia Pty Ltd debt on an indemnity basis. Lastly, I reserved for decision the fourth defendant’s application that the plaintiff pay the fourth defendant’s costs in relation to a notice to admit delivered by the plaintiff to the defendants on 28 April 2000.
I shall deal with the last two matters first. The plaintiff originally included, as part of his claim, a debt owed by the Company of which the plaintiff is liquidator, South Australian Ships Pty Ltd (the Company), to Ka Me Wa Pty Ltd. Eventually, at trial, the plaintiff abandoned that aspect of his claim.
As I have already indicated the plaintiff also sought the costs of issues on an indemnity basis and I refused those applications.
It seems to me that, consistent with that approach, I should refuse the fourth defendant’s application for costs on an indemnity basis in relation to the Ka Me Wa debt.
It is true, as the fourth defendant claims, the plaintiff maintained this debt was an unsecured debt owing by the company to Ka Me Wa Pty Ltd until abandoned at trial. However the abandonment of the claim itself does not mean that the plaintiff should suffer an order for indemnity costs in relation to the issue of that debt.
I am not persuaded that this issue should be treated…

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: [2003] SASC 32
Decision Date: 19 February 2003

CaseChat Overview and Summary

This case involves a legal dispute between Scott, the plaintiff and liquidator of South Australian Ships Pty Ltd, and the fourth defendant, Phillip Christian Hercus. The plaintiff had initially filed a claim against five defendants, but the action against all but the fourth defendant was compromised. The trial between the plaintiff and the fourth defendant resulted in a judgment of $500,000 in favour of the plaintiff. Both parties subsequently applied for various costs orders. The court reserved decisions on some applications, including the plaintiff's application for costs of action and the fourth defendant's application for costs of action from a specific date. Additionally, the court considered the fourth defendant's applications for costs related to the Ka Me Wa Australia Pty Ltd debt and a notice to admit.

The court dismissed the fourth defendant's application for indemnity costs in relation to the Ka Me Wa debt, stating that the plaintiff's abandonment of the claim did not warrant an order for indemnity costs. Regarding the notice to admit, the court found that it would have been preferable to pursue the application immediately after a previous decision, but ultimately declined to consider the application without further argument.

As for the costs of action, the court found that the plaintiff's settlement with some defendants rendered the joint offer to consent to judgment ineffective. Consequently, the court ordered the fourth defendant to pay the plaintiff's costs of action on a party and party basis.

In summary, the court dismissed some of the fourth defendant's applications and ordered the fourth defendant to pay the plaintiff's costs of action in relation to the trial.

Orders