Thomas v Southcorp Australia Pty Ltd (No 2) - [2004] VSC 50

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

LONG CASES LIST

No. 4774 of 2000

BARRY RAYMOND THOMAS And VALERIE ROSE THOMAS	Plaintiffs
V
SOUTHCORP AUSTRALIA PTY LTD (ACN 004 213 665) And SOUTHCORP MANUFACTURING PTY LTD (ACN 004 253 605)	Defendants
No. 6144 of 2002
VALERIE ROSE THOMAS	Plaintiff
V
SOUTHCORP AUSTRALIA PTY LTD (ACN 004 213 665) And SOUTHCORP MANUFACTURING PTY LTD (ACN 004 253 605)	Defendants

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2004
DATE OF JUDGMENT:	27 February 2004
CASE MAY BE CITED AS:	Thomas v Southcorp (No 2)
MEDIUM NEUTRAL CITATION:	[2004] VSC 50

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Compensation – Negligence – Defective goods causing loss – whether defect in heater caused house fire – Trade Practices Act 1974, ss 74B, 74D, 75AF, 75AG and 82 – finalisation of orders after judgment handed down.

Costs – whether indemnity costs appropriate – whether costs in related proceedings be set off - Supreme Court (General Civil Procedure) Rules 1996, rules 63.55 and 63.30.1

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs in No 4774 of 2000	Mr F Saccardo	Ligeti Partners
For the Plaintiff in No 6144 of 2002	Mr F Saccardo	Henry Carus & Associates
For the Defendants	Ms M Loughnan	Phillips Fox

HER HONOUR:

Introduction

My reasons for judgment in these two matters (“the earlier reasons”) were delivered on 16 February 2004, when I invited submissions as to the details of the orders to be made and as to costs. Pending the making of those submissions, the judgment has not been authenticated. Those submissions have now been made. These reasons should be read with the earlier reasons.

The formal orders

I deal first with the submissions as to the orders to be made in No 4774 of 2000 (“the property claim”). In that matter, the plaintiffs in their statement of claim sought relief under sections 74B, 74D, 75AF, 75AG and 82 of the Trade Practices Act 1974 (“the Act”).

As I said at [73] of the earlier reasons:

Mr Saccardo submitted that I should find liability in the defendants, in that the heater had a defect, in terms of the definition in section 75AC of the Act, in that its safety was not such as persons generally were entitled to expect, and that the fire occurred because of that defect. That being so, he submitted, the defendants were liable to compensate the plaintiffs under section 75AF for the loss which they have suffered because of the defect as a result of the destruction of or damage to their goods, being goods of the kind described in section 75AF(c); and are liable to compensate the plaintiffs under section 75AG for the loss which they have suffered because of the defect as a result of the destruction of or damage to the house. Mr Lewis [senior counsel for the defendants] made no submission in relation to sections 75AC, 75AF or 75AG.

At [76] of the earlier reasons I said:

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: [2004] VSC 50
Decision Date: 27 February 2004

CaseChat Overview and Summary

Thomas sued Southcorp Australia Pty Ltd over a claim for compensation arising from a house fire allegedly caused by a defective heater supplied by Southcorp. The matter proceeded to the Supreme Court of Victoria, where a judgment was handed down in Thomas's favour. The court was required to determine the finalisation of orders, including indemnity costs and the setting off of costs from related proceedings. The court considered the relevant statutory provisions under the Trade Practices Act 1974 and the Supreme Court (General Civil Procedure) Rules 1996. The court examined whether indemnity costs were appropriate and whether the costs in related proceedings should be set off. In making its decision, the court took into account the statutory provisions and the general principles of costs in civil litigation.

The court found that indemnity costs were appropriate in this case due to the nature of the claim and the conduct of Southcorp. The court also found that the costs in related proceedings should be set off against the costs awarded to Thomas. The court relied on the relevant provisions of the Supreme Court (General Civil Procedure) Rules 1996, which provide for the setting off of costs in certain circumstances. The court considered the overall fairness and reasonableness of the costs awarded and found that the setting off of costs was appropriate in this case. The court made orders for indemnity costs and the setting off of costs in related proceedings, in accordance with the statutory provisions and the general principles of costs in civil litigation.

Orders