Bayton Cleaning Co Pty Ltd v Woods (No 2) [2015] NSWSC 443

Bayton Cleaning Co Pty Ltd v Woods (No 2) [2015] NSWSC 443

Although the Plaintiff's summary judgment motion against RAM was unsuccessful, RAM deliberately chose not to amend its pleading to rely on the Limitation Act until late, and one principal basis on which it resisted summary judgment was that previously unpleaded limitation issue. The costs thrown away by that amendment justified departure from the usual rule, but the amount was discounted because RAM also succeeded on other issues, resulting in an order that RAM pay 70% of the Plaintiff's relevant costs excluding the substantiation audit and Mr Jenkin affidavit costs. For Mr Woods, the Court could not determine whether the application would have succeeded apart from the unpleaded credit...

Jurisdiction
Australia
Judgment Date
23 April 2015
Procedural Posture
Costs / On the Papers After Dismissal of the Plaintiff's Amended Notice of Motion Seeking Summary Judgment Against the Second Defendant
Outcome
Costs orders made following dismissal of the Plaintiff's amended notice of motion for summary judgment.
Legal Topics
['summary Judgment' 'costs Follow the Event' 'costs Thrown Away by Amendment' 'amended Defence' 'limitation Act Defence']
['costs' 'civil Procedure'] ['summary Judgment' 'costs Follow the Event' 'costs Thrown Away by Amendment' 'amended Defence' 'limitation Act Defence']

Case Brief

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Procedural Posture

Costs / On the Papers After Dismissal of the Plaintiff's Amended Notice of Motion Seeking Summary Judgment Against the Second Defendant

Legal Issues

  1. 1 ["Whether the costs of the Plaintiff's motion for summary judgment against RAM Nominees Pty Ltd should follow the event or whether circumstances warranted a departure from the usual rule." 'Whether the late reliance on a Limitation Act defence in an amended defence justified treating costs of the motion as costs thrown away by the amendment.' 'Whether costs of the motion against Richard Woods should be awarded to either party where the Plaintiff did not press the motion after unpleaded credit entries or counterclaims were raised.']

Ratio Decidendi

Although the Plaintiff's summary judgment motion against RAM was unsuccessful, RAM deliberately chose not to amend its pleading to rely on the Limitation Act until late, and one principal basis on which it resisted summary judgment was that previously unpleaded limitation issue. The costs thrown away by that amendment justified departure from the usual rule, but the amount was discounted because RAM also succeeded on other issues, resulting in an order that RAM pay 70% of the Plaintiff's relevant costs excluding the substantiation audit and Mr Jenkin affidavit costs. For Mr Woods, the Court could not determine whether the application would have succeeded apart from the unpleaded credit...

Court Disposition

Costs orders made following dismissal of the Plaintiff's amended notice of motion for summary judgment.

Orders

  • ["The Plaintiff's and the First Defendant's costs of the Plaintiff's notice of motion dated 11 July 2014 be costs in the cause." "The Second Defendant pay 70% of the Plaintiff's costs of its notice of motion dated 11 July 2014 and its amended notice of motion filed 30 March 2015 referable to the Second Defendant,...