Artistic Builders Pty Ltd & Anor v Nash & Ors [2007] NSWSC 1279

Artistic Builders Pty Ltd & Anor v Nash & Ors [2007] NSWSC 1279

The filing and service of the second and third further amended statements of claim would be approached on the basis that they involved costs already incurred by the first to fourth defendants being thrown away. Because the plaintiffs extensively redrafted their claim and obtained leave to amend at a very late stage, they were prima facie responsible for those costs. Earlier costs orders dealt only with discrete motions and costs thrown away by the vacation of hearing dates, not the costs thrown away by the amended pleadings. There was no undue delay disentitling the first to fourth defendants, and UCPR 42.7(1) did not support the plaintiffs' argument. The first to fourth defendants were...

Jurisdiction
Australia
Judgment Date
13 November 2007
Procedural Posture
Notice of Motion for Costs Thrown Away as a Result of Filing and Service of Amended Statements of Claim / Application Before Hoeben J in the Supreme Court of New South Wales, Common Law Division
Outcome
Application granted.
Legal Topics
['costs Thrown Away' 'amendment of Pleadings' 'further Amended Statement of Claim' 'delay in Seeking Costs' 'ucpr 42.7(1)']
['civil Procedure' 'costs'] ['costs Thrown Away' 'amendment of Pleadings' 'further Amended Statement of Claim' 'delay in Seeking Costs' 'ucpr 42.7(1)']

Case Brief

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Procedural Posture

Notice of Motion for Costs Thrown Away as a Result of Filing and Service of Amended Statements of Claim / Application Before Hoeben J in the Supreme Court of New South Wales, Common Law Division

Legal Issues

  1. 1 ["Whether the plaintiffs should pay the first to fourth defendants' costs thrown away as a result of the filing and service of the second further amended statement of claim and the third further amended statement of claim." 'Whether earlier costs orders already included the costs thrown away by the filing and service of the second and third further amended statements of claim.' 'Whether the application for costs was made too late so as to disentitle the first to fourth defendants to the costs sought.' "Whether UCPR 42.7(1) supported the plaintiffs' submission that costs not specifically ordered had become costs in the proceedings."]

Ratio Decidendi

The filing and service of the second and third further amended statements of claim would be approached on the basis that they involved costs already incurred by the first to fourth defendants being thrown away. Because the plaintiffs extensively redrafted their claim and obtained leave to amend at a very late stage, they were prima facie responsible for those costs. Earlier costs orders dealt only with discrete motions and costs thrown away by the vacation of hearing dates, not the costs thrown away by the amended pleadings. There was no undue delay disentitling the first to fourth defendants, and UCPR 42.7(1) did not support the plaintiffs' argument. The first to fourth defendants were...

Court Disposition

Application granted.

Orders

  • ["The plaintiffs are to pay the first – fourth defendants' costs thrown away as a result of the filing and service of the second further amended statement of claim and the third further amended statement of claim." "The plaintiffs are to pay the first – fourth defendants' costs of this application."]