Tan v Cheah No. DCCIV-00-1645 - [2002] SADC 62

TAN v CHEAH
[2000] SADC 1645
Judge Robertson
Civil

I have granted the Defendant an adjournment of the Trial on the grounds that she is medically unfit to travel from Perth to Adelaide to attend the Trial. The Plaintiff is entitled to her costs thrown away. The Plaintiff seeks an order that the costs be ordered to be paid on an indemnity basis. In other words, the Plaintiff seeks an order on a solicitor and client basis, which costs would also include counsel fees.
The usual order for costs is on a party and party basis. However, costs on a solicitor and client basis may be awarded where there is some special or unusual feature to justify the Court departing from the ordinary practice. (Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234; Re Wilcox; ex parte Venture Industries (1996) 141 ALR 727). It is the Plaintiff’s contention that the Defendant’s delay in bringing the application is the special or unusual feature which requires the Court to exercise its discretion to order solicitor and client costs.
The Defendant has been suffering from the medical condition for some considerable time. It was this condition which led to the hearing of the trial set for 19 November 2001 to be adjourned. Master Norman in granting the adjournment commented that the application had been brought at a late stage. The application for adjournment was brought on 8 November 2001 although her condition was diagnosed in August 2001.
The Defendant in her affidavit sworn on 16 May 2002, in support of her application to adjourn this Trial, deposed that although surgery for her medical condition was contemplated back in December 2001 it was not possible for her to undergo the surgery prior to the date of the Trial because of the shortage of hospital beds. The Defendant further deposed that she is to undergo surgery for her condition on 21 June 2002.
The Plaintiff filed her application for an adjournment on 17 May 2002, some four days before the commencement of the Trial. The matter had been set down for hearing at a listing conference on 15 January 2002. During that conference the Defendant’s solicitor obtained instructions from the Defendant that 21 May 2002 was a satisfactory date.
On 1 May 2002 the Plaintiff’s solicitor wrote to the Defendant’s solicitors in Perth indicating that he had been informed that the Defendant intended to apply for the adjournment of the Trial to be held on 21 May 2002 on the grounds of ill health. The Plaintiff’s solicitor urged the Defendant’s solicitors to immediately apply for an adjournment. He received no reply to this letter. The Plaintiff’s solicitors forwarded a facsimile to the Defendant’s solicitors on 10 May 2002 enquiring about the application to adjourn the trial date and received no reply. The first positive sign by the Defendant was when her solicitors wrote to the Plaintiff’s solicitors on 14 May 2002 advising of the intention to make the…

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: [2002] SADC 62
Decision Date: 22 May 2002

CaseChat Overview and Summary

The matter before the court involved a dispute between Tan and Cheah, with Tan seeking an order for the costs associated with the adjournment of their trial to be paid on a solicitor and client basis. The trial was initially scheduled for 21 May 2002 but was adjourned due to Cheah's medical condition, which rendered her unfit to travel from Perth to Adelaide. Tan argued that the delay in Cheah's application to adjourn the trial constituted a special or unusual feature that justified the court awarding costs on a solicitor and client basis, rather than the usual party and party basis.

The legal issue before the court was whether the special or unusual feature of Cheah's late application for an adjournment warranted an award of costs on a solicitor and client basis. The court considered whether the circumstances surrounding Cheah's application for the adjournment constituted a special or unusual feature, and whether this warranted the court exercising its discretion to order costs on a solicitor and client basis. The court noted that costs on a solicitor and client basis may be awarded where there is some special or unusual feature to justify the court departing from the ordinary practice.

The court found that the lateness of Cheah's application for an adjournment, viewed against the background of the facts presented, constituted a special or unusual feature that required the court to depart from the ordinary practice of awarding costs and award solicitor and client costs. The court was critical of Cheah's delay in bringing the application, noting that she had been aware of her medical condition and the need for surgery since before Christmas 2001. The court also noted that Cheah's solicitors had encountered difficulties in obtaining a medical report for reasons beyond her control, but did not provide any further details. The court concluded that the evidence suggested that Cheah could have brought the application by at least 1 May 2002, and that if the application had been brought earlier the costs thrown away would have been far less. Accordingly, the court ordered that Cheah pay the costs thrown away as a result of the adjournment on a solicitor and client basis.

The court referred the question of the quantum of costs to Master Norman for determination.

Orders