Smart Company Pty Ltd v Clipsal Australia Pty Ltd [2008] FCA 1008

Smart Company Pty Ltd v Clipsal Australia Pty Ltd [2008] FCA 1008

Although the applicant had taken nearly four years to articulate its statement of claim and had caused the respondents costs associated with considering amendments and attending amendment applications, the thrust of the applicant's case had not significantly changed, the respondents had been on notice of the claim from commencement, they had not been required to re-plead repeatedly, there was no evidence of serious disadvantage if costs were not recovered until final determination, and taxation forthwith would distract from progressing the principal proceeding. It was therefore not in the interests of justice to depart from the usual rule under O 62 r 3.

Jurisdiction
Australia
Judgment Date
03 July 2008
Procedural Posture
Practice and Procedure; Interlocutory Costs Application / Respondents' Application for Leave to Have Costs Taxed Forthwith Pursuant to O 62 R 3 After Applicant Was Granted Leave to File a Fourth Further Amended Statement of Claim
Outcome
Respondents' application for leave to have costs taxed forthwith pursuant to O 62 r 3 dismissed; costs orders made in favour of the respondents for specified hearings, amendments, and the leave to amend application.
Legal Topics
['taxation of Costs Forthwith' 'interlocutory Costs' 'amendment of Pleadings' 'costs Thrown Away']
['practice and Procedure' 'costs'] ['taxation of Costs Forthwith' 'interlocutory Costs' 'amendment of Pleadings' 'costs Thrown Away']

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Procedural Posture

Practice and Procedure; Interlocutory Costs Application / Respondents' Application for Leave to Have Costs Taxed Forthwith Pursuant to O 62 R 3 After Applicant Was Granted Leave to File a Fourth Further Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the respondents should have leave to have interlocutory costs taxed forthwith pursuant to O 62 r 3 of the Federal Court Rules 1979 (Cth).' "Whether the applicant should pay the respondents' costs and costs thrown away by reason of amendments to pleadings and applications concerning the pleadings."]

Ratio Decidendi

Although the applicant had taken nearly four years to articulate its statement of claim and had caused the respondents costs associated with considering amendments and attending amendment applications, the thrust of the applicant's case had not significantly changed, the respondents had been on notice of the claim from commencement, they had not been required to re-plead repeatedly, there was no evidence of serious disadvantage if costs were not recovered until final determination, and taxation forthwith would distract from progressing the principal proceeding. It was therefore not in the interests of justice to depart from the usual rule under O 62 r 3.

Court Disposition

Respondents' application for leave to have costs taxed forthwith pursuant to O 62 r 3 dismissed; costs orders made in favour of the respondents for specified hearings, amendments, and the leave to amend application.

Orders

  • ["The applicant pay the respondents' costs of the hearing of 7 November 2007." "The applicant pay the respondents' costs including costs thrown away by reason of the amendments to the third further amended statement of claim filed 20 May 2005 (TFASOC), on a party and party basis as agreed or taxed, including...