Emirates Park Pty Ltd v Magic Millions Sales Pty Ltd [2002] FCA 1039

Emirates Park Pty Ltd v Magic Millions Sales Pty Ltd [2002] FCA 1039

Indemnity costs were not appropriate because, although the applicant conceded that the original statement of claim pleaded the wrong legislation, the first respondent did not suggest that its legal advisers had brought that error to the applicant's advisers' attention. Had they done so and the applicant nevertheless pursued the claim, the first respondent might have had some claim to indemnity costs. The appropriate order was that the applicant pay both respondents' costs thrown away by the amendments.

Jurisdiction
Australia
Judgment Date
22 August 2002
Procedural Posture
Costs on Application for Leave to Amend Statement of Claim / Reasons for Judgment (costs)
Outcome
The applicant was ordered to pay each of the first and second respondent's costs thrown away by the amendment to its statement of claim; indemnity costs were refused.
Legal Topics
['indemnity Costs' 'costs Thrown Away by Amendment' 'professional Courtesy Between Solicitors' 'amendment of Statement of Claim']
['civil Procedure' 'costs'] ['indemnity Costs' 'costs Thrown Away by Amendment' 'professional Courtesy Between Solicitors' 'amendment of Statement of Claim']

Case Brief

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Procedural Posture

Costs on Application for Leave to Amend Statement of Claim / Reasons for Judgment (costs)

Legal Issues

  1. 1 ["Whether the applicant should pay the respondents' costs thrown away by the amendment to its statement of claim." "Whether the first respondent's costs thrown away should be taxed and paid on an indemnity basis." "Whether the first respondent's legal advisers' failure to bring the pleaded error to the applicant's advisers' attention affected the appropriateness of indemnity costs."]

Ratio Decidendi

Indemnity costs were not appropriate because, although the applicant conceded that the original statement of claim pleaded the wrong legislation, the first respondent did not suggest that its legal advisers had brought that error to the applicant's advisers' attention. Had they done so and the applicant nevertheless pursued the claim, the first respondent might have had some claim to indemnity costs. The appropriate order was that the applicant pay both respondents' costs thrown away by the amendments.

Court Disposition

The applicant was ordered to pay each of the first and second respondent's costs thrown away by the amendment to its statement of claim; indemnity costs were refused.

Orders

  • ["The applicant pay each of the first and second respondent's costs thrown away by the amendment to its statement of claim."]