J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd (No 4) [2015] FCA 218

J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd (No 4) [2015] FCA 218

Because Becton properly and successfully applied to set aside a notice to produce that was not relevant to the proceeding, it was entitled to those costs. Although Vaughan Super obtained leave to amend, it sought an indulgence and Becton and Mr Macdonald had not unreasonably opposed the application, so Vaughan Super had to pay their costs of the leave application and costs thrown away. The usual costs-in-the-cause order for a dismissed summary judgment application was inappropriate because Becton's summary judgment costs were intertwined with, but not wholly referable to, the amendment application and some costs might not fairly follow the ultimate disposition; those costs were therefore...

Jurisdiction
Australia
Judgment Date
13 March 2015
Procedural Posture
Costs Applications Arising From Interlocutory Applications / Determination of Costs Following Dismissal of Summary Judgment Application, Grant of Leave to Amend, and Setting Aside of Notice to Produce
Outcome
Costs ordered against the applicant in relation to the amendment application and notice to produce; costs of the first respondent's summary judgment application reserved until further order.
Legal Topics
['costs of Application for Leave to Amend Pleading' 'costs Thrown Away by Amendment' 'costs of Unsuccessful Summary Judgment Application' 'notice to Produce' 'costs in the Cause' 'reservation of Costs']
['civil Procedure' 'costs'] ['costs of Application for Leave to Amend Pleading' 'costs Thrown Away by Amendment' 'costs of Unsuccessful Summary Judgment Application' 'notice to Produce' 'costs in the Cause' 'reservation of Costs']

Case Brief

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Procedural Posture

Costs Applications Arising From Interlocutory Applications / Determination of Costs Following Dismissal of Summary Judgment Application, Grant of Leave to Amend, and Setting Aside of Notice to Produce

Legal Issues

  1. 1 ["Whether Becton was entitled to costs of its successful application to set aside Vaughan Super's notice to produce." "Whether Becton and Mr Macdonald were entitled to costs of Vaughan Super's successful application for leave to file a proposed further amended statement of claim and costs thrown away by reason of the amendment." "Whether costs of Becton's unsuccessful application for summary judgment should be awarded to Vaughan Super, made costs in the cause, or reserved."]

Ratio Decidendi

Because Becton properly and successfully applied to set aside a notice to produce that was not relevant to the proceeding, it was entitled to those costs. Although Vaughan Super obtained leave to amend, it sought an indulgence and Becton and Mr Macdonald had not unreasonably opposed the application, so Vaughan Super had to pay their costs of the leave application and costs thrown away. The usual costs-in-the-cause order for a dismissed summary judgment application was inappropriate because Becton's summary judgment costs were intertwined with, but not wholly referable to, the amendment application and some costs might not fairly follow the ultimate disposition; those costs were therefore...

Court Disposition

Costs ordered against the applicant in relation to the amendment application and notice to produce; costs of the first respondent's summary judgment application reserved until further order.

Orders

  • ['The applicant pay the costs of the first and second respondents on the application for leave to file a proposed further amended statement of claim, together with the costs of the first and second respondents thrown away by reason of the amendment.' "The applicant pay the costs of the first respondent on the first...