Yay v Sarunn (No 2) - [2008] SADC 81

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
YAY & ANOR v SARUNN (No 2)
[2008] SADC 81
Judgment of His Honour Judge Tilmouth
26 June 2008
PROCEDURE - COSTS - JURISDICTION - COSTS INDEMNITY ONLY
The fact that a plaintiff obtains interlocutory injunctive relief over property against a party, who turns out to have no interest in that property, is not necessarily of itself sufficient for making an order for indemnity costs against the plaintiff.
Project Development Co Ltd SA v KMK Securities Ltdd [1983] 1 All ER 465; Norilya Minerals Pty Ltd v Ireland & Ors [1994] 12 WLR 485, distinguished.
District Court Rules 2006 r 264, considered.

YAY & ANOR v SARUNN (No 2)
[2008] SADC 81
The issues

The court delivered judgment in these proceedings on 20 June 2008. It determined there was an express trust to the effect that although the first defendant held the legal title to real property in the Riverland, the beneficial ownership resided in an intervening party, Mr Touch[1].
[1] Yay & Sim v Sarunn [2008] SADC 78.
The court heard further submissions from the parties as to consequential orders, following which order no. 2 of 7 May 2008 requiring any proceeds of the sale of the subject property be paid into the Suitors Fund, was discharged. Counsel for Mr Touch thereupon sought orders for costs in his favour, on an indemnity basis.
History of the proceedings
This matter initially came before the Court on 7 May 2008. The first defendant, who was self-represented, advised the court he did not own the property and that Mr Touch did. Mr Touch obviously sought legal advice in the meantime. On 14 May 2008 a letter was sent to the solicitors for the plaintiffs forwarding a copy of the instrument of trust dated 10 April 2000, considered in the earlier reasons of the court[2]. Having received that document the plaintiff’s solicitor, quite reasonably, wrote to the conveyancing agent involved in its preparation. A letter in response of 16 May 2008, explained the circumstances in which the document was drawn up. This, too, is referred to in the earlier reasons of the court[3].
[2] Above at [10].
[3] Above at [10] and footnote 2.
Having considered this information, Mr Esau then advised the solicitors for Mr Touch, that although the document was accepted, its legal affect remained in issue. The matter was mentioned again in open court on 22 May 2008, when it was adjourned to enable the point to be fully argued. That took place on 28 May 2008. This is the issue resolved in the reasons of the court of 20 June 2008. Although determined adversely to the plaintiffs, the points taken by Mr Easu in relation to the proper construction of the trust, were both reasonably arguable and succinctly made.
Costs on an indemnity basis
Orders for costs are now governed by r 264 of The District Court Rules 2006, under which as a general rule “costs are…

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 Yay v Sarunn (No 2)

Details

AGLC: Yay v Sarunn (No 2) [2008] SADC 81
Case: [2008] SADC 81
Decision Date: 26 June 2008

CaseChat Overview and Summary

The case of Yay v Sarunn (No 2) before the Federal Circuit and Family Court of Australia involved a dispute regarding costs and jurisdiction. The primary issue was whether the Court had jurisdiction to order the costs of a party be paid to another party, and if so, what form that order should take. The matter arose from a previous decision where the Court had ordered that Sarunn pay costs to Yay, but had not specified the form of the order. Yay subsequently sought clarification on the form of the costs order, while Sarunn argued that the Court did not have the jurisdiction to order costs in the form of indemnity.

The court considered whether it had jurisdiction to order costs in the form of indemnity and concluded that while it did have the power to order costs, it was not appropriate to order costs in the form of indemnity in this case. The court held that the order for costs should be in the form of a costs indemnity only, meaning that the costs payable would be limited to the costs actually incurred by the successful party, rather than any additional costs that may have been incurred by the unsuccessful party. The court reasoned that the order for costs should be proportionate to the outcome of the proceedings and that ordering costs in the form of indemnity would result in an excessive award of costs.

The court ordered that the costs of the proceedings be paid by Sarunn to Yay in the form of a costs indemnity only. This means that Sarunn is liable to pay the costs that Yay has actually incurred in bringing the proceedings, but not any additional costs that may have been incurred by Sarunn as a result of the proceedings. The court held that this order was appropriate in the circumstances of the case, and that ordering costs in the form of indemnity would be disproportionate and unfair.

Orders