McLeish v Stirling House (Guildford) Pty Ltd [2005] NSWIRComm 433

McLeish v Stirling House (Guildford) Pty Ltd [2005] NSWIRComm 433

Because the applicant's amendment deleted a substantial and discrete part of the section 106 claim, leaving issues that no longer needed to be litigated, the respondent was entitled to its costs thrown away by reason of the amendment. Those costs were to be assessed under the Legal Profession Act and were not to become payable until the conclusion of the substantive proceedings. No order was made for the costs of the motion because, although the respondent succeeded, the applicant had no practical alternative but to resist the application given the $20,000 assessment sought.

Jurisdiction
Australia
Judgment Date
18 November 2005
Procedural Posture
Application Under S.106 of the Industrial Relations Act 1996 / Interlocutory Motion for Costs Thrown Away; Ex Tempore Judgment
Outcome
Respondent's motion for costs thrown away granted, with costs to be assessed and payment deferred; no order as to costs of the motion.
Legal Topics
['section 106 Claim' 'amendment of Summons' 'costs Thrown Away' 'conciliation' 'costs Assessment Under the Legal Profession Act']
['industrial Relations' 'costs'] ['section 106 Claim' 'amendment of Summons' 'costs Thrown Away' 'conciliation' 'costs Assessment Under the Legal Profession Act']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Application Under S.106 of the Industrial Relations Act 1996 / Interlocutory Motion for Costs Thrown Away; Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the respondent was entitled to costs thrown away by reason of the applicant's amendment deleting a substantial and discrete part of the claim." 'Whether costs thrown away should be payable immediately or only at the conclusion of the substantive proceedings.' 'Whether any order should be made for the costs of the motion heard that day.']

Ratio Decidendi

Because the applicant's amendment deleted a substantial and discrete part of the section 106 claim, leaving issues that no longer needed to be litigated, the respondent was entitled to its costs thrown away by reason of the amendment. Those costs were to be assessed under the Legal Profession Act and were not to become payable until the conclusion of the substantive proceedings. No order was made for the costs of the motion because, although the respondent succeeded, the applicant had no practical alternative but to resist the application given the $20,000 assessment sought.

Court Disposition

Respondent's motion for costs thrown away granted, with costs to be assessed and payment deferred; no order as to costs of the motion.

Orders

  • ['The costs thrown away by reason of the amendment are to be assessed by an assessor under the Legal Profession Act.' 'The costs thrown away will not become payable until the conclusion of the substantive proceedings.' 'The solicitor for the applicant and the solicitor for the respondent are directed to ensure...