Wine ACC Supplies Pty Ltd v Bordex Wineracks Pty Ltd (No 2)

[2014] SASCFC 71

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

WINE ACC SUPPLIES PTY LTD v BORDEX WINERACKS PTY LTD (No 2)

[2014] SASCFC 71

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)

4 July 2014

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION - WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE - OFFER OF COMPROMISE MADE

Application for solicitor and client costs.  An appeal against interlocutory orders raised an issue that was determinative of the proceeding. The appeal against the interlocutory orders was upheld and the respondent’s claim against the appellant was dismissed.  The respondent conceded the costs of the action and the appeal on a party and party basis.  The appellant had previously made two offers to settle the interlocutory appeal and sought its costs of the appeal on a solicitor and client basis.

Whether the respondent’s failure to accept the offers to settle the interlocutory appeal were unreasonable.  Whether costs should be awarded on a solicitor and client basis. 

Held per the Court dismissing the application for solicitor and client costs:

1.  An appeal proceeding stands on a different footing to a trial proceeding (at [3]). 

2.  The respondent’s rejection of the offers of settlement was not unreasonable (at [3]).

3.  The point on which the appellant was ultimately successful was raised by the Court on appeal and not referred to in the grounds of appeal.  This materially advantaged the appellant (at [4]).

WINE ACC SUPPLIES PTY LTD v BORDEX WINERACKS PTY LTD (No 2)
[2014] SASCFC 71

Full Court:       Gray, Sulan and Blue JJ

THE COURT

1. On 27 May 2014, we upheld the appeal in this proceeding and dismissed the respondent’s claim against the appellant.  The appeal was initially against interlocutory orders made by a Judge of the Court but as the hearing progressed the Court took the view that an issue arose that was determinative of the proceeding.  As a consequence the respondent’s claim was dismissed. 

2. The respondent conceded the costs of the action and the appeal on a party and party basis.  The appellant contended that an order for solicitor and client costs should be made in respect of the appeal for the period 11 April to 27 May 2014.  The basis of the application was that the appellant had made two offers to settle the interlocutory appeal and in the circumstances those offers should have been accepted by the respondent and the respondent’s failure to do so was unreasonable. 

3. The application for a solicitor and clients cost should be rejected.  An appeal proceeding stands on a different footing to a trial proceeding.  In the present proceeding the Judge under appeal had made an order in favour of the respondent.  The respondent is entitled to seek to maintain that order.  There is nothing unreasonable about a respondent in so acting merely because it transpires that the appeal is allowed. 

4. During the appeal the Court raised a particular concern concerning the respondent’s acceptance of what was said to be the appellant’s repudiation of contractual arrangements.  This matter was obliquely referred to in the appellant’s outline and was not a matter referred to in its grounds of appeal.  As a consequence the appellant was materially advantaged.

5. For the above reasons we order that the respondent pay the appellant’s costs of the appeal to be taxed on a party and party basis.  As noted earlier, we reject the application for a portion of the costs to be on a solicitor and client basis.