Hawkins v Wetherill Park Market Town Pty Ltd [2020] NSWSC 303

Hawkins v Wetherill Park Market Town Pty Ltd [2020] NSWSC 303

The earlier pleadings were defective and the first to third defendants were successful on their notice of motion because Mr Hawkins could not defend the amended statement of claim and was given leave to file a significantly augmented further amended statement of claim to cure defects. The fourth defendant was likewise entitled to costs of appearing in response to that motion because he had a separate interest in having the amended statement of claim struck out or dismissed. However, the further amended statement of claim did not propound a substantially new claim and a substantial proportion of the defendants' incurred costs would remain effective, so the defendants were not entitled to...

Jurisdiction
Australia
Judgment Date
26 March 2020
Procedural Posture
Costs Application in Equity Proceedings / Determination of Defendants' Costs Applications After Leave Was Given to File a Further Amended Statement of Claim
Outcome
Costs applications allowed in part; indemnity costs, costs of the whole proceedings to date, and recovery forthwith refused.
Legal Topics
['party/party Costs' 'costs Follow the Event' 'indemnity Costs' 'costs Occasioned by Amendment of Pleadings' 'recovery of Costs Forthwith']
['costs' 'civil Procedure'] ['party/party Costs' 'costs Follow the Event' 'indemnity Costs' 'costs Occasioned by Amendment of Pleadings' 'recovery of Costs Forthwith']

Case Brief

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Procedural Posture

Costs Application in Equity Proceedings / Determination of Defendants' Costs Applications After Leave Was Given to File a Further Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the defendants should receive costs of the proceedings to date after defects in the statement of claim and amended statement of claim were corrected by a further amended statement of claim.' 'Whether the first to third defendants were entitled to costs of their notice of motion filed on 24 May 2019.' "Whether the fourth defendant was entitled to costs of appearing in response to the first to third defendants' notice of motion despite not filing his own notice of motion seeking to strike out or dismiss the amended statement of claim." 'Whether any costs should be ordered on the indemnity basis.' 'Whether the defendants should be permitted to recover costs forthwith.']

Ratio Decidendi

The earlier pleadings were defective and the first to third defendants were successful on their notice of motion because Mr Hawkins could not defend the amended statement of claim and was given leave to file a significantly augmented further amended statement of claim to cure defects. The fourth defendant was likewise entitled to costs of appearing in response to that motion because he had a separate interest in having the amended statement of claim struck out or dismissed. However, the further amended statement of claim did not propound a substantially new claim and a substantial proportion of the defendants' incurred costs would remain effective, so the defendants were not entitled to...

Court Disposition

Costs applications allowed in part; indemnity costs, costs of the whole proceedings to date, and recovery forthwith refused.

Orders

  • ['First to third defendants are entitled to their costs of their notice of motion filed on 24 May 2019.' 'The fourth defendant is entitled to his costs of appearing in response to the notice of motion filed by the first to third defendants on an equivalent basis to those defendants.' 'All defendants are entitled to...