RWSC Pty Ltd v Gregory & Anor [2021] NSWSC 427

RWSC Pty Ltd v Gregory & Anor [2021] NSWSC 427

Because the defendants’ late amendment to plead a quantum meruit claim fundamentally altered the issues and likely would have prevented the notice of motion being filed in the first place, it is fair for the costs of the plaintiff’s notice of motion to be its costs in the cause. The order avoids penalising the plaintiff for having brought an application that was undermined only by events outside its control.

Jurisdiction
Australia
Judgment Date
27 April 2021
Procedural Posture
Equity Commercial List / Procedural Ruling on Costs of Notice of Motion for Separate Question
Outcome
Costs of plaintiff’s notice of motion to be its costs in the cause; amendment costs to be paid by defendants/cross-claimants
Legal Topics
['costs' 'separate Question' 'pleadings Amendment' 'quantum Meruit']
['civil Procedure'] ['costs' 'separate Question' 'pleadings Amendment' 'quantum Meruit']

Case Brief

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Procedural Posture

Equity Commercial List / Procedural Ruling on Costs of Notice of Motion for Separate Question

Legal Issues

  1. 1 ['Whether costs should be awarded following the plaintiff’s unsuccessful application for determination of a separate question' 'Whether the plaintiff would have brought the motion if the quantum meruit claim had been pleaded earlier' 'Appropriateness of ordering separate questions based on hypothetical or assumed facts']

Ratio Decidendi

Because the defendants’ late amendment to plead a quantum meruit claim fundamentally altered the issues and likely would have prevented the notice of motion being filed in the first place, it is fair for the costs of the plaintiff’s notice of motion to be its costs in the cause. The order avoids penalising the plaintiff for having brought an application that was undermined only by events outside its control.

Court Disposition

Costs of plaintiff’s notice of motion to be its costs in the cause; amendment costs to be paid by defendants/cross-claimants

Orders

  • ["Costs of the plaintiff's notice of motion of 24 February 2021 to be the plaintiff's costs in the cause" "Defendants and cross-claimants to pay the plaintiff's and cross-defendant's costs thrown away by the amendments to the Commercial List Response, the Cross-Claim Summons, and the Cross-Claim List Statement"]