Wendt v Northwood [No 2] [2003] NSWSC 871

Wendt v Northwood [No 2] [2003] NSWSC 871

Although a defendant ordinarily has a reasonable expectation of receiving costs thrown away when an amendment is allowed, the Court was not persuaded that its earlier order making those costs the defendant's costs in the cause was untoward, harsh or oppressive. Because the plaintiff's amended case alleged serious breach of duty by a solicitor and the defendant's conduct could not be properly assessed until trial, the ordinary costs consequence should not be imposed at this stage; costs in the cause provided a sufficient costs benefit to the defendant.

Jurisdiction
Australia
Judgment Date
24 September 2003
Procedural Posture
Costs Application Following Amendment Application / Defendant's Notice of Motion to Revisit Interlocutory Costs Order
Outcome
The earlier costs order was affirmed and the defendant's notice of motion to revisit the order was dismissed.
Legal Topics
['amendment of Statement of Claim' 'costs Thrown Away' 'costs in the Cause' 'indemnity Costs' 'interlocutory Costs Orders']
['costs' 'civil Procedure'] ['amendment of Statement of Claim' 'costs Thrown Away' 'costs in the Cause' 'indemnity Costs' 'interlocutory Costs Orders']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs Application Following Amendment Application / Defendant's Notice of Motion to Revisit Interlocutory Costs Order

Legal Issues

  1. 1 ['Whether the earlier costs order made on 24 June 2003 should be revisited or revised.' "Whether the plaintiff should pay the defendant's costs thrown away by reason of the amendment application rather than those costs being the defendant's costs in the cause." 'Whether it was premature to determine any indemnity costs or punitive costs consequence before trial.']

Ratio Decidendi

Although a defendant ordinarily has a reasonable expectation of receiving costs thrown away when an amendment is allowed, the Court was not persuaded that its earlier order making those costs the defendant's costs in the cause was untoward, harsh or oppressive. Because the plaintiff's amended case alleged serious breach of duty by a solicitor and the defendant's conduct could not be properly assessed until trial, the ordinary costs consequence should not be imposed at this stage; costs in the cause provided a sufficient costs benefit to the defendant.

Court Disposition

The earlier costs order was affirmed and the defendant's notice of motion to revisit the order was dismissed.

Orders

  • ['Affirm the order for costs made on 24 June 2003.' "Dismiss the defendant's notice of motion to revisit that order." "The costs of the defendant's application to revise the order of the Court on costs should be costs in the cause."]