Patten v Motor Traders’ Association of New South Wales (No 2) [2018] NSWSC 597

Patten v Motor Traders’ Association of New South Wales (No 2) [2018] NSWSC 597

Both parties bore responsibility for the costs consequences of the amendment application: the Plaintiff's continued opposition after service of the Defendant's explanatory affidavit and the 27 February 2018 letter was unreasonable, but the Defendant's incomplete Defence and inadequate preparation before mediation caused costs and meant the mediation proceeded on an incorrect appreciation of the Defendant's case. The Court therefore apportioned costs by reference to those periods and events.

Jurisdiction
Australia
Judgment Date
10 May 2018
Procedural Posture
Costs Application Arising From Defendant's Application to Amend Its Defence / On the Papers After Costs Were Reserved Following Judgment on the Amendment Application
Outcome
Costs orders made apportioning responsibility between the parties and returning confidential material to the Plaintiff's solicitor.
Legal Topics
['costs Discretion' 'amendment of Defence' 'withdrawal of Admissions' 'unreasonable Opposition to Amendment' 'mediation Confidentiality']
['civil Procedure' 'costs'] ['costs Discretion' 'amendment of Defence' 'withdrawal of Admissions' 'unreasonable Opposition to Amendment' 'mediation Confidentiality']

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Procedural Posture

Costs Application Arising From Defendant's Application to Amend Its Defence / On the Papers After Costs Were Reserved Following Judgment on the Amendment Application

Legal Issues

  1. 1 ["What costs orders should be made following the Defendant's successful application to amend its Defence." "Whether the Plaintiff's continued opposition to the amendment application after service of the Defendant's affidavit was unreasonable for costs purposes." 'Whether the Defendant should bear costs attributable to its incomplete Defence and the mediation having proceeded on an incorrect appreciation of its case.' 'Whether mediation material should affect the costs determination.']

Ratio Decidendi

Both parties bore responsibility for the costs consequences of the amendment application: the Plaintiff's continued opposition after service of the Defendant's explanatory affidavit and the 27 February 2018 letter was unreasonable, but the Defendant's incomplete Defence and inadequate preparation before mediation caused costs and meant the mediation proceeded on an incorrect appreciation of the Defendant's case. The Court therefore apportioned costs by reference to those periods and events.

Court Disposition

Costs orders made apportioning responsibility between the parties and returning confidential material to the Plaintiff's solicitor.

Orders

  • ['The Defendant is to bear its own costs of the preparation of the Notice of Motion and Affidavit in support up to and including 27 February 2017.' "The Defendant is to pay the Plaintiff's costs incurred in reviewing and responding to the Notice of Motion up to and including 27 February 2018." "The Plaintiff is to...