MS A PHILLIS In Person v STRATA CORPORATION NO. 3537 INC. [2024] SADC 68

On Review from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE VOZZO) [2023] SAMC 119 Appellant: MS A PHILLIS In Person Respondent: STRATA CORPORATION NO. 3537 INC. Counsel: MR G RUSSELL Hearing Date/s: 24/05/2024 File No/s: CIV-24-002236 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil: Minor Civil Review) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. PHILLIS v STRATA CORPORATION NO. 3537 INC.; STRATA CORPORATION NO. 3537 INC. v PHILLIS [2024] SADC 68 Decision of his Honour Auxiliary Judge Chivell 7 June 2024 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL MATTERS - POWER TO AWARD GENERALLY - MAGISTRATES' OR LOCAL COURTS Minor Civil Review of decision of Magistrate to award costs in two Minor Civil actions heard together - costs awarded on the basis of a percentage of total legal costs incurred by Strata Corporation in the two actions. Held - Award of costs invalid. There is no power to award costs other than on the Minor Civil costs scale. Strata Titles Act 1988 (SA) s 48A, s 37, s 27; Magistrates Court Act 1991 (SA) s 38(s); Uniform Civil Rules 2020 (SA) Schedule 6, Part 4, Rule 1.5, Rule 341.1, referred to. Phillis v Strata Corporation No. 3537 Inc.; Strata Corporation No. 3537 Inc. v Phillis [2023] SAMC 119; Wamije Investments Pty Ltd v Strata Corporation 1232 Inc. [2021] SADC 4, discussed. -- 1 of 15 -- -- 2 of 15 -- PHILLIS v STRATA CORPORATION NO. 3537 INC.; STRATA CORPORATION NO. 3537 INC. v PHILLIS [2024] SADC 68 Minor Civil Review 1 This is a group of applications for review of decisions made by a Magistrate in two minor civil actions. They are brought pursuant to s 38(6) of the Magistrates Court Act, (1991) SA, and concern the question of legal costs. 2 Ms Phillis is the owner of Units 4 and 8 in a group of eight units in Fullarton, South Australia. The common property of the unit holders is administered by the respondent, Strata Corporation 3537 Inc. pursuant to the Strata Titles Act (1988) SA. I will refer to the respondent as ‘the Corporation’. The Primary Action 3 The litigation between these two parties commenced when Ms Phillis brought an application pursuant to s 41A(2) of the Strata Tiles Act (1998) SA. That being so, the provisions of the Magistrates Court Act (1991) SA apply as if the proceeding was a Minor Civil action within the meaning of that act (see Strata Titles Act (1988) SA, s 48A). 4 This proceeding was described by the Magistrate as ‘The Primary Action’.1 Ms Phillis sought the following relief: • Repayment of $45.00 for ‘emergency remedial works’ to seal a downpipe and drainpipe; • Repayment of $338.00 for ‘emergency remedial works’ to seal a gap between the boundary of Unit 8 and a concrete path on the common property; • An order requiring the respondent to seal another gap between the fence of Unit 8 and the path on the common property; • An order requiring the respondent to stabilise the building on which Unit 8 stands to prevent further damage caused by soil movement and to repair damage already done; • An order requiring the respondent to repair defective painting work to the exterior of the building; • An order that the respondent pay $750.00 being the fee for an expert report provided by Mr George Liptak prepared for a conciliation meeting arranged by the Department for Consumer and Business Services; 1 AMCCI-19-2848. -- 3 of 15 -- [2024] SADC 68 2 • An order requiring the respondent to provide access by the applicant to its records. 5 On 14 February 2022, an order was made in the Primary Action by the Magistrate that Ms Phillis not approach or contact Priority Plumbing or the Fawcett Group.2 A dispute had arisen between Ms Phillis and the Corporation about which of these contractors should be engaged to carry out remedial work. The Administration Action 6 On 18 May 2022, the Corporation, with the support of the owners of the other units other that Ms Phillis, applied to the Magistrates Court for an order appointing an Administrator of the Corporation pursuant to s 37 of the Strata Titles Act. This application was called ‘The Administration Action’ by the Magistrate. 3 7 The grounds for seeking the above order were: That the erratic, combative, threatening and litigious behaviour of Ms Amanda Phillis, owner of units four and eight, have created such extreme circumstances that the Strata Corporation has become unmanageable without the intervention of the court. 8 On 1 June 2022, the Magistrate ordered that Mr Gordon Russell be appointed the Administrator of the Corporation. 9 On 11 November 2022, an order was made in the Administration Action that Ms Phillis be restrained from contacting any service provider engaged by Mr Russell as the administrator of the Strata Corporation. The Magistrate said that Ms Phillis had ‘deliberately and unreasonably interfered with the performance of in Mr Russell’s duties on Administration’.4 The Recovery Action 10 On 5 December 2022, the Corporation filed an application in the Magistrates Court to recover the sum of $5,984.14 from Ms Phillis for unpaid fees, levies, charges and interest allegedly owing for the period 1 September 2022 to 1 December 2022.5 In reply, Ms Phillis filed a cross-claim and set-off for $12,000.00. the Magistrate called this ‘the Recovery Action’.6 11 In her defence (FDN 2), Ms Phillis sought further particulars of the amount claimed, and claimed a set-off in varying amounts arising out of the building and maintenance issues referred to earlier. 2 FDN 38. 3 CIV-22-005561. 4 FDN 21. 5 The amount $5,984.14 comprised $2,992.07 each for Units 4 and 8. 6 CIV-22-013502. -- 4 of 15 -- [2024] SADC 68 3 The Trial 12 The Magistrate ordered that the Primary Action and the Recovery Action be heard together. The evidence received was treated as evidence in both actions. 13 The trial was held on 3 and 4 August 2023. Ms Phillis was not represented by counsel. Leave was granted for the Corporation to be represented by Ms Schuetze on instructions from the insurer of the Corporation in the Primary Action, and by Ms Carter who was instructed by Mr Russell in the Recovery Action. The Magistrate observed that Ms Phillis did not oppose the Corporation being legally represented in this way.7 14 Having heard evidence from the parties, as well as from Mr Prider, a structural engineer, and from Ms Lowe, another unitholder and former Presiding Officer of the Corporation, the Magistrate invited the parties to confer. They did so, and jointly proposed a number of orders to be made. This resulted in orders numbered 5 to 18, made by consent on 4 August 2023 in the Primary Action.8 15 The Magistrate said that prior to the conference, she gave an ‘intimation of my likely position on the remaining trial issues’ after Ms Phillis had abandoned certain aspects of the various set-offs and counter claims in the Recovery Action.9 16 Her Honour observed that it was ‘to the credit’ of Ms Phillis and Mr Russell, with the assistance of the Corporation’s solicitor, that they were able to reach an agreed position and formulate the orders made by consent.10 Trial Outcomes – Primary Action 17 In her reasons for decision on the question of costs,11 the Magistrate very helpfully set out a series of tables setting out the remaining issues to be determined in the Primary Action, and the outcomes achieved at the trial. Taken from these tables, my summary is as follows: 1. Water / Plumbing Issues • Whether the remedial plumbing works carried out by the Fawcett Group was consistent with methodology recommended by Mr Prider; • Whether the sump had been installed on the common property front lawn area; • Whether the large gap in the concrete path between the front lawn area and Unit 8 had been remedied. 7 [2023] SAMC 119, [10]. 8 FDN 100. 9 [2023] SAMC 119, [13]. 10 [2023] SAMC 119, [14]. 11 [2023] SAMC 127, 10 October 2023. -- 5 of 15 -- [2024] SADC 68 4 Outcomes 18 The above issues were dealt with in Consent Orders 11 to 18 as follows: 11. The Administrator is to obtain a quote for the installation of a sump by Priority Plumbing with regard to the scope and recommendations in the email of Mr Phil Pryder to Amanda Phillis dated 30 November 2020 within 30 days from today; 12. Following receipt of the quote as per Order 11 above, the Administrator is to engage Priority Plumbing as soon as possible subject to contractor availability; 13. The Administrator is to arrange for the sump grill in the driveway to be repaired within 30 days from today; 14. The Administrator is to arrange for the base for the base of the downpipe of Unit 7 to be resealed by Chris Ford Plumbing, within 30 days from today; 15. The Administrator is to make enquiries of Ken Hall Plumbers regarding the use of flexible connectors of the sewer pipe work installed by Fawcett Plumbing, and the adequacy and best practice of the screedings within 14 days from today; 16. The Administrator is to arrange for static testing of the new common sewers at the rear of Units 7 and 8 by 3 October 2023; 17. The Administrator is to arrange for a plumber to inspect the whole main sewer system with a view to locating any problem areas within 30 days from today; 18. Subject to the outcome of the plumbers inspection referred to in Order 17 above, the Administrator is to take appropriate action to remedy any matters arising as soon as possible. 2. Access to Corporation Records 19 Ms Phillis did not press her applications under this heading, so no orders were made. 3. Reimbursement and Payment of Moneys • Whether the Corporation is obliged to pay the sum of $750.00 to Master Builder, Mr G Liptak, for inspecting and reporting on the balconies of the buildings; • Whether the Corporation is obliged to pay the sum of $398.00 (or $383.00) to Ms Phillis as reimbursement for emergency remedial works which were carried out on the common property by a licensed plumber, Kym Ralph. Outcomes 20 The Magistrate considered that these issues were dealt with by Consent Orders 3 and 4: -- 6 of 15 -- [2024] SADC 68 5 3. The respondent Corporation is to pay the sum of $750 to Master Builder Mr George Liptak for inspecting and reporting on the balconies of the buildings within 60 days from today; 4. The Corporation is to pay Ms Phillis the sum of $383 as reimbursement for works carried out by Kym Ralph within 60 days of today. 4. Corporation Minutes • Whether the minutes of meetings held by the Corporation in 2018, 2019, 2020, 2021 and 2022 are inaccurate or incomplete and should be amended. Outcomes 21 Ms Phillis did not press these applications, and no orders were made. 5. External Painting • Whether the Corporation breached any obligation owed to Ms Phillis to pursue rectification of defective external painting work carried out by Derek Wales Painters. • If so, is Ms Phillis entitled to refuse to contribute towards any wasted as additional costs, if any, incurred by the Corporation related to the rectification of defective external painting work carried out by Derek Wales Painters. Outcomes 22 The Magistrate concluded that these issues were dealt with by Consent Orders 5 and 6 as to the southwest facing window of Unit 8. The balance of Ms Phillis’s claims were unsubstantiated. Orders 5 and 6 were: 5. The Administrator is to obtain quotations from two suitably qualified contractors to advise on the repair or replacement of the southwest facing window of Unit 8 within 30 days from today; 6. Following receipt of the quotes as per Order 5 above, the Administrator is to engage one of the contractors as soon as possible subject to contractor availability. 23 I have set out these outcomes in detail because they demonstrate that Ms Phillis was almost completely successful in having the concerns she presented in the application addressed. The only areas in which she was not successful were abandoned by her at the Trial, or related to the external painting work. Costs of the Primary Action 24 As to the costs of the Primary Action, the Magistrate recorded that the solicitor for the insurer of the Strata Corporation, Ms Schuetze did not seek any costs orders in favour of the Strata Corporation in respect of the Primary Action. However, the Solicitor for the Corporation, Ms Carter, intimated that the -- 7 of 15 -- [2024] SADC 68 6 Corporation was seeking costs against Ms Phillis in relation to the Recovery Action, and in relation to that part of the Primary Action, which were incurred prior to the involvement of the insurer.12 Trial Outcomes – Recovery Action 25 Ms Phillis was not so successful in relation to the Recovery Action. I do not understand that she seriously disputed that the special levy imposed to pay the repairs to the balconies ($2,500.00 per unit) was owed.13 26 The Magistrate made an order on 4 August 2023, the second day of the trial, that Ms Phillis pay $4,000.00 in relation to the balcony repairs within seven days (Order 1) and directed the Administrator to issue a work order for the repairs of the balconies of Units 4 and 8 within seven days of receiving payment from Ms Phillis (Order 2). 27 These orders were made, as mentioned, on 4 August 2023, a substantial time before the judgment was delivered on 7 September 2023. 28 Dealing with Ms Phillis’s purported set-offs and counter claims did take substantial time, however. In particular, Ms Phillis objected to paying the Overdue Account Fee, the Debt Collection Fee, and interest on outstanding levy fees, a total of $992.07 per unit. 29 The Magistrate disallowed the Overdue Account Fee and the Debt Collection Fee, a total amount of $171.70. 30 I agree with the Magistrate that the Corporation substantially succeeded in its claim. 31 As to Ms Phillis’s claimed set-offs and counter-claims, the Magistrate again prepared helpful tables setting out the outcomes in relation to the issues raised.14 32 In brief summary, the issues raised by Ms Phillis were: 1. Reimbursement of $625.00 arising from orders made on 30 November 2021 in relation to remediation of plumbing works. This issue was not pressed by Ms Phillis and no orders were made. 2. Reimbursement of $6737.50, being Ms Phillis’s share of the remedial works in issue 1 above. This claim was rejected by the Magistrate, although it was covered in Consent Orders 11 to 18 described above. 12 [2023] SAMC 119, [20]. 13 [2023] SAMC 119, [56]. 14 [2023] SAMC 127, [32]. -- 8 of 15 -- [2024] SADC 68 7 3. Reimbursement of $153.00 for Ms Phillis’s claim. This was to be regarded as part of the costs of the action and not a claim in itself. This claim was disallowed. 4. Reimbursement of court expenses and other costs. This claim was disallowed. 5. Reimbursement of $2,250.00 being Ms Phillis’s share of the ‘Monaghan Litigation’ which she asserted was wrongly settled by the Strata Corporation in 2018 for $3,000.00 when it should have recovered $12,000.00. This claim was disallowed by the Magistrate.15 6. Reimbursement of $1990.00 to remedy defective external painting by Hatwell Painting Services on Units 4 and 8. This issue was not pressed by Ms Phillis, although it was dealt with in Consent Orders 5 and 6 above, and otherwise disallowed by the Magistrate. 7. Reimbursement of expenses in attending meetings in 2018, 2019, 2020, 2021 and 2022. This item was not pressed by Ms Phillis and no orders were made. 8. Reimbursement of money paid to Body Corporate Managers for two Annual General Meetings and one Extraordinary General Meeting. This claim was disallowed by the Magistrate. 9. Reimbursement of money paid to a plumbing firm for works in Unit 7. This item was not pressed by Ms Phillis and no order was made. 10. Reimbursement of money received from SA Water. This claim was disallowed by the Magistrate. 11. Reimbursement of money paid to CHU Underwriting Pty Ltd. This item was disallowed by the Magistrate. 12. Payment of expenses incurred in repairing damaged ceiling and re- attaching cornice in the upstairs bathroom in Unit 8. This item was dealt with under Consent Orders 8 and 9 above. 13. Reimbursement of lost income in Units 4 and 8. This item was disallowed by the Magistrate. 14. Reinstatement of the provisional credit from Adcorp Property Group. This item was disallowed on the basis that it had been previously determined by the court against Ms Phillis. 15 [2023] SAMC 119, [54]. -- 9 of 15 -- [2024] SADC 68 8 33 It can be seen from the above that, apart from the matters not pressed by Ms Phillis, almost all of the claims raised by her in the set off and counterclaim were determined by the court against her. Liability of Unit Holders for Expenses Incurred in Debt Recovery 34 Section 27 of the Strata Titles Act, 1989 (SA) gives a Strata Corporation power to raise money by levying contribution from unit holders, provided that such action is approved by an ordinary resolution at a meeting of unit holders. 35 Section 27(3) states: (3) The contributions – (a) Will be proportional to the unit entitlement of the various units; or (b) Will be determined on such other basis as the strata corporation decides by unanimous resolution. 36 On 4 February 2019, the Annual General Meeting of the Strata Corporation was held. Included in Item 9 of the minutes of the meeting is the following passage: Legal Action Charges All Court charges and fees and any costs awarded by the court. UNANIMOUS It was recorded that these costs (including all costs incurred by the strata corporation for recovery work) will be debited against the relevant unit holders as an amount due and owing to the corporation. UNANIMOUS 37 The Corporation argued before the Magistrate, and again before me, that this resolution entitled it to a full recovery of all legal costs incurred, which is tantamount to an award of full indemnity costs. 38 The Corporation seeks a review of the Magistrates decision on the basis that it is too narrow, but I agree with her Honour that such a draconian power would require more precise words than those which appear in the resolution. 39 The Magistrate regarded the resolution as ‘ambiguous’.16 Her Honour held that they authorise the Corporation to charge ‘relevant unit holders’ the legal costs incurred ‘in respect of debt recovery proceedings only’ and did not extend to all legal costs incurred. I agree. I would add that the words ‘these costs’ in resolution 2 clearly refer to the words ‘all unit charges and fees and any costs awarded by the court’ in resolution 1’. 16 [2023] SAMC 127, [89]. -- 10 of 15 -- [2024] SADC 68 9 40 The Corporation referred me to Wamije Investments Pty Ltd v Strata Corporation 1232 Inc..17 In that case, the decision of a Magistrate in a Minor Civil action to allow a Corporation’s claim against a unit holder for the full amount paid to a legal firm in relation to a recovery action was upheld. Thomas DCJ said: For the reasons set out below, I find that for the Levy Arrears Policy to give rise to a legal obligation for Wamije to pay the Mellor Olsson’s costs as a debt it was necessary for it to be adopted by the passing of a unanimous resolution at a validly convened general meeting in accordance with s 27(3) of the Strata Titles Act. (my underlining) 41 In this case, the Corporation did not seek to recover its outlays to Lynch Meyer as a debt. It sought to do so in an application for costs of the various actions. 42 In Wamije, Thomas DCJ also said18: Since the basis of the Strata Corporation’s entitlement to the Mellor Olsson Costs derives from the valid adoption of the Levy Arrears Policy by the passing of unanimous resolutions at validly convened general meetings in accordance with s 27 of the Strata Titles Act, and not from the exercise of the Court’s discretion to award costs in proceedings, the cost rules are not applicable. Accordingly, the quantum of the Mellor Olsson Costs is not determined by the applicable Magistrates Court costs scale and I reject Wamije’s contentions in this regard. (my underlining) 43 In that passage, Thomas DCJ has very precisely identified the distinction between the situation in Wamije and the situation here. This was an application for the exercise of the Court’s discretion to award costs in proceedings, and the Minor Civil costs scale is applicable. 44 A further ground of distinction between this case and Wamije is the wording of the relevant resolution. In Wamije, the Leavy Arrears Policy adopted in relation to the recovery of legal costs was: All related costs associated with the recovery of any outstanding monies will be recovered from the relevant unit holder as debt against the unit. 45 In this case, as I have mentioned, the relevant policy was: All court charges and fees and any costs awarded by the Court. (my underlining) 46 Ms Phillis submitted that any costs awarded should be limited to those provided in the Minor Civil Scale of Costs in Schedule 6, Part 4 of the Uniform Civil Rules, 2020. These rules are subject to the provisions of s 38(5) of the Magistrates Court Act, 1991 (SA) which are: 17 [2021] SADC 4, Thomas DCJ, at [36]. 18 [2021] SADC 4, Thomas DCJ, at [86]. -- 11 of 15 -- [2024] SADC 68 10 (5) In a minor civil action, costs for getting up the case for trial, or by way of counsel fees, will not be awarded unless all parties were represented by counsel, or the Court is of opinion that there are special circumstances justifying the award of such costs. 47 The factors identified by the Corporation as amounting to ‘special circumstances’ were identified by the Magistrate19 as: • Repeated delays caused by raising the same issue repetitively; • Numerous scurrilous but failed, interlocutory applications by Ms Phillis; • Technical disputes and arguments about the power of the court and the Administrator, including an application for the Magistrate to recuse herself; • The filing of the same voluminous, repetitive and in some cases irrelevant documents; • The filing of the same voluminous affidavit material across each of the actions; • The use of frequent and voluminous emails sent by Ms Phillis to various multiple parties about the same issues. 48 I agree with the Magistrate that many of those criticisms were justified. 49 The corporation claimed $6469.00 in relation to the Primary Action and $16,883.70 in relation to the Recovery Action. As I indicated earlier in these reasons, I agree with the Magistrate that this is tantamount to a claim for indemnity costs. This is clearly not permitted by the Minor Civil Costs Scale. 50 The Magistrate detailed in her judgment the extent to which Ms Phillis’s behaviours had unreasonably lengthened the litigation. 51 The objects of the Uniform Civil Rules are to ‘Facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings governed by these Rules’.20 A party to litigation must ‘use reasonable endeavours to ensure that the time and costs incurred are reasonable and proportionate to the importance and value of the subject matter of the proceedings’ and the complexity of the issues in the proceedings or steps in the proceedings.21 52 In this case, 36 affidavits were filed, many of them with voluminous and largely unhelpful appendices, there were nine separate interlocutory applications, all requiring quite lengthy hearings, many of which were made lengthier by Ms Phillis’ argumentative and uncooperative attitude, and her relentless and uncooperative approach. Her Honour has written seven separate judgments, in the four actions and various interlocutory rulings, three of which were very substantial. 19 [2023] SAMC 127, [103]. 20 Uniform Civil Rule 1.5. 21 Uniform Civil Rule 3.1(h). -- 12 of 15 -- [2024] SADC 68 11 53 The Magistrate did not overlook the fact that Ms Phillis was unrepresented, and I would add, understandably anxious about the threats, or perceived threats, to the structural integrity of her property. She was agitated by the Corporation’s tardiness in addressing her concerns. 54 However, the costs incurred here were vastly disproportionate to the ‘importance and value’ of the subject matter of the litigation. 55 The Magistrate held that ‘special circumstances’ existed.22 I agree. 56 This conclusion would enable the corporation to claim costs for ‘getting up the case for trial’ under s 38(5), but no more. It does not appear that a specific claim for any such costs was quantified by the corporation. 57 After finding that special circumstances existed, the Magistrate proceeded to make orders for costs. Her Honour said:23 Costs are not intended to be punitive but compensatory of the legal costs incurred by a party in the conduct of a proceeding. In the circumstances outlined above, an award of costs on the Minor Costs Scale in favour of the corporation does not do justice. Nor is there justice in awarding costs on an indemnity basis … Accordingly, I consider that Ms Phillis should pay 25% of the Lynch Meyer costs as the costs of the actions. 58 Unfortunately, I think that at this late stage of the proceedings, the Magistrate fell into error. I say this with regret, having regard to the enormous patience her Honour demonstrated in these proceedings, the immense work she has devoted to the conduct of the litigation, and the very strong sense of justice she has demonstrated to the parties. 59 However, I do not think her Honour had the power to depart from the Minor Civil Costs Scale no matter how unreasonable Ms Phillis’ behaviour has been. 60 The power to award costs in a Minor Civil Action comes from Uniform Civil Rule 341.1: A successful party in a minor civil action is entitled to costs on the Minor Civil Costs Scale in Schedule 6 Part 4 unless the court finds proper cause exists to make no order as to costs for failure to comply with Part 2 of this chapter. 61 Her Honour therefore had only two options available to her on the question of costs – either to award costs on the Minor Civil Costs Scale, or to make no order as to costs. 22 [2023] SAMC 127 at [110]. 23 [2023] SAMC 127 at [119]. -- 13 of 15 -- [2024] SADC 68 12 62 Section 38(7)(d) of the Magistrates Court Act provides that in determining the review of the Magistrate’s judgment I may: i. affirm the judgment; or ii. rescind the judgment and substitute a judgment that the court considers appropriate. 63 At the conclusion of her judgment,24 the Magistrate made the following order: 1. Ms Phillis is to pay the Corporation’s costs of action AMCCI-19-2848 and CIV-22-013502 fixed at $5838.17. 2. In addition to the amount payable pursuant to order 1 above, Ms Phillis will be liable to pay to the Corporation the balance of the Lynch Reyer costs in proportion to the unit entitlements of the various units in accordance with s 27(3)(a) of the Strata Titles Act, 1988. 64 As to order 1, the amount $5838.17 was calculated on the basis that Ms Phillis should pay 25% of $23,352.70, which was the total amount incurred by the corporation in this litigation. As I have outlined above, there was no power to assess costs on that basis. 65 I rescind that order. 66 As to order 2, the statement made may be correct, but for the same reasons outlined above, there was no power to make such an order as an order for costs. 67 I rescind that order as well. 68 Her Honour made two further orders, but they did not relate to the question of costs. 69 As to what orders should be substituted on the question of costs, I take the following matters into account: 1. I agree with the Magistrate’s characterisation of Ms Phillis’ behaviour. It unreasonably lengthened the litigation to the extent that it is appropriate that an order for costs in favour of the Corporation be made. 2. Ms Phillis is entitled to some credit on the basis that she was justified in initiating action AMCCI-19-2848 to obtain redress in the face of inaction on the part of the Corporation, and on the basis that she had some success in that action. However, her behaviour in this litigation has caused the caused the costs incurred to be so disproportionate to the issues involved, I consider that Ms Phillis should pay 100% of the Corporation’s costs in both actions, to be assessed on the Minor Civil 24 [2023] SAMC 127, [124]. -- 14 of 15 -- [2024] SADC 68 13 Scale. It is pointless to try and distinguish between the two actions, since they were inextricably linked and heard simultaneously. 3. For the purposes of s 38(5) of the Magistrates Court Act, special circumstances exist which justify an award of costs for getting up both actions for trial. Disposition of the Reviews 70 I order as follows: 1. Orders 1 and 2 made by Magistrate Vozzo on 10 October 2023 are rescinded. 2. The respondent in action AMCCI-19-2848, and applicant in action CIV-22-013502, have 100% of its costs of both actions to be assessed, if not agreed, on the Minor Civil Costs Scale. 3. The assessment of costs in order 2 should be on the basis that special circumstances exist which entitle an award of costs for getting both actions up for trial. 4. The application for review by the Corporation is dismissed. 5. No order as to costs of the review. -- 15 of 15 --