White v Lachlan Shire Council (No 1) [2017] NSWDC 132

White v Lachlan Shire Council (No 1) [2017] NSWDC 132

The plaintiff's successive changes to his pleaded case, interlocutory conduct and the resulting vacation of hearing dates caused the defendant to incur considerable wasted costs. Those costs were sufficiently discrete to justify a gross sum order payable forthwith, and a costs assessment should be avoided. However, indemnity costs would be unduly punitive rather than compensatory, some discount was appropriate because not all claimed costs could safely be characterised as fully wasted and the late emergence of Exhibit "P" was not due to fault on the plaintiff's side. The defendant's wasted costs were therefore assessed on a broad-brush discounted basis at $90,000 including GST.

Jurisdiction
Australia
Judgment Date
02 June 2017
Procedural Posture
Civil Costs Application in Damages Proceedings for Alleged Nuisance and Negligence / Interlocutory Application for Wasted Costs Following Amendments to the Plaintiff's Statement of Claim and Vacated Hearing Dates
Outcome
Defendant's application for a wasted costs order was allowed in part; gross sum costs were ordered payable forthwith, but indemnity costs were declined and any indemnification question was deferred.
Legal Topics
['wasted Costs' 'gross Sum Costs Order' 'indemnity Costs' 'costs Payable Forthwith' 'amendment of Pleadings' 'case Management']
['civil Procedure' 'costs' 'torts'] ['wasted Costs' 'gross Sum Costs Order' 'indemnity Costs' 'costs Payable Forthwith' 'amendment of Pleadings' 'case Management']

Case Brief

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Procedural Posture

Civil Costs Application in Damages Proceedings for Alleged Nuisance and Negligence / Interlocutory Application for Wasted Costs Following Amendments to the Plaintiff's Statement of Claim and Vacated Hearing Dates

Legal Issues

  1. 1 ["Whether the plaintiff should be ordered under s 98(1) of the Civil Procedure Act 2005 to pay the defendant's wasted costs caused by successive amendments to the statement of claim and vacated hearing dates." 'Whether the wasted costs should be assessed as a gross sum using a broad-brush approach rather than sent to costs assessment.' 'Whether the costs should be paid forthwith before final determination of the liability and quantum issues.' 'Whether the costs should be ordered on an indemnity basis.' 'Whether the question of indemnification of the plaintiff by another person should be deferred for procedural fairness.']

Ratio Decidendi

The plaintiff's successive changes to his pleaded case, interlocutory conduct and the resulting vacation of hearing dates caused the defendant to incur considerable wasted costs. Those costs were sufficiently discrete to justify a gross sum order payable forthwith, and a costs assessment should be avoided. However, indemnity costs would be unduly punitive rather than compensatory, some discount was appropriate because not all claimed costs could safely be characterised as fully wasted and the late emergence of Exhibit "P" was not due to fault on the plaintiff's side. The defendant's wasted costs were therefore assessed on a broad-brush discounted basis at $90,000 including GST.

Court Disposition

Defendant's application for a wasted costs order was allowed in part; gross sum costs were ordered payable forthwith, but indemnity costs were declined and any indemnification question was deferred.

Orders

  • ["Pursuant to s 98(1) of the Civil Procedure Act 2005, the plaintiff is ordered to pay the defendant's wasted costs incurred consequent upon the plaintiff's successive applications to further amend his statement of claim and the related need to vacate hearing dates." "The costs that are the subject of Order (1)...