Steicke v Pederick (No 2) - [2020] SASCFC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
STEICKE v PEDERICK & ANOR (No 2)
[2020] SASCFC 13
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Lovell)
26 February 2020
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - ORDER FOR COSTS ON INDEMNITY BASIS
Application for costs on indemnity basis by the respondents.
Where applicant unsuccessfully applied for permission to appeal a decision of a Master to dismiss an interlocutory application for an extension of time to comply with self-executing orders – where the respondents as the successful party seek an order that the applicant pay the respondents’ costs of the appeal on an indemnity basis.
Whether the applicant had a reasonable prospect of success in her application for permission to appeal - whether the Court should depart from the general rule and order the applicant to pay the respondents’ costs of the appeal on an indemnity basis.
Held: the applicant is to pay the respondents’ costs of the appeal to be adjudicated on a party and party basis if not agreed.
Pascoe Ltd (in liq) v Lucas (1999) 75 SASR 246, applied.
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FLR 225, considered.

STEICKE v PEDERICK & ANOR (No 2)
[2020] SASCFC 13
Full Court: Kelly, Nicholson and Lovell JJ
THE COURT
Introduction

The applicant unsuccessfully applied to this Court for permission to appeal against a decision of a Master to dismiss her interlocutory application for an extension of time to comply with self‑executing orders made by the Master on 28 February 2018, or in the alternative, for the proceedings to be referred to mediation. The respondents now seek an order that the applicant pay the respondents’ costs of the appeal to this Court to be adjudicated on an indemnity basis.
This Court delivered its reasons for refusing to grant the applicant permission to appeal on 29 November 2019. On that date, following an application by the respondents as the successful party, this Court made the following orders:
1Permission to appeal is refused.
2The applicant is to pay the respondents’ costs of the appeal to be adjudicated on a party and party basis if not agreed, with leave being granted to the respondents to make an application for costs on a higher basis by way of written submissions of no more than three pages in length, to be filed and served by 4 pm on Wednesday, 4 December 2019.
3In the event that the respondents make application for costs on a higher basis, the applicant may respond to the application by written submissions of no more than three pages in length to be filed and served by 4 pm on Friday, 6 December 2019.
In accordance with those orders, the respondents duly filed an application that the applicant pay the costs of the appeal to be adjudicated on an indemnity basis. The written submissions in support of that application were provided to the Court on 4 December…

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 Steicke v Pederick (No 2)

Details

AGLC: Steicke v Pederick (No 2) [2020] SASCFC 13
Case: [2020] SASCFC 13
Decision Date: 26 February 2020

CaseChat Overview and Summary

The applicant, Steicke, appealed a decision concerning costs against the respondents, Pederick. The dispute centred on whether the respondents should be ordered to pay the applicant's costs of an appeal on an indemnity basis, rather than the usual party and party basis. The appeal was heard by Kelly, Nicholson, and Lovell JJ.

The primary legal issue before the Full Court was whether the circumstances of the appeal justified departing from the general rule that costs are awarded on a party and party basis. Specifically, the court had to determine if the applicant's conduct or the nature of the appeal warranted the more generous indemnity costs.

The court found that while the application for costs on an indemnity basis lacked merit, it did not meet the threshold for departing from the general rule. The judges applied the principle that indemnity costs are an exception to the norm and require exceptional circumstances, which were not present in this instance. Consequently, the court ordered that the applicant pay the respondents' costs of the appeal, to be assessed on a party and party basis unless otherwise agreed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In our view, while the application clearly lacked merit, it does not warrant an order for costs other than in accordance with the general rule.Conclusion The applicant is to pay the respondents’ costs of the appeal to be adjudicated on a party and party basis if not agreed

Ratio Decidendi

Legal Principle Established

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