Wills & Anor v. Bigmac P/L & Anor [1994] FCA 949

Wills & Anor v. Bigmac P/L & Anor [1994] FCA 949

There were no sufficient grounds to depart from the usual rule regarding costs as the amendment to the statement of claim did not substantially change the risk for respondents, and the respondents' argument did not demonstrate compelling circumstances for an 'otherwise order' as to costs. The applicants accepted the payment into court within the prescribed period, and costs consequences should follow the rule.

Parties
Applicant: Donald John Wills; Applicant: Heather Reney Wills; Respondent: Bigmac Pty Ltd; Respondent: Ford Motor Company of Australia Limited; Cross Claimant: Bigmac Pty Ltd; Cross Respondent: Ford Motor Company of Australia Limited
Jurisdiction
Australia
Judgment Date
09 December 1994
Procedural Posture
Civil / Post Trial; Costs Application and Orders
Outcome
Respondents' motion dismissed with costs, including reserved costs.
Legal Topics
Costs, Payment Into Court, Amendment to Pleadings, Trade Practices Act
Civil Procedure Trade Practices Costs Payment Into Court Amendment to Pleadings Trade Practices Act

Case Brief

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Parties

Donald John Wills

Applicant

Heather Reney Wills

Applicant

Bigmac Pty Ltd

Respondent

Ford Motor Company of Australia Limited

Respondent

Bigmac Pty Ltd

Cross Claimant

Ford Motor Company of Australia Limited

Cross Respondent

Procedural Posture

Civil / Post Trial; Costs Application and Orders

Legal Issues

  1. 1 Should the usual costs consequence prescribed by Federal Court Rules O 23 r 11(1)(a) be varied due to late amendment of statement of claim raising additional causes of action under Trade Practices Act?
  2. 2 Whether late amendment to statement of claim substantially changed the litigation risk warranting a different costs order

Ratio Decidendi

There were no sufficient grounds to depart from the usual rule regarding costs as the amendment to the statement of claim did not substantially change the risk for respondents, and the respondents' argument did not demonstrate compelling circumstances for an 'otherwise order' as to costs. The applicants accepted the payment into court within the prescribed period, and costs consequences should follow the rule.

Court Disposition

Respondents' motion dismissed with costs, including reserved costs.

Orders

  • The respondents' motion by notice dated 23 November 1994 is dismissed with costs, including reserved costs.
  • Order 23 r 11(1)(a) operates in its terms; no other order is required.