Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd (No 25)

Cherwell Creek Coal Pty Ltd (the applicant) filed an application for leave to amend a pleading against BHP Queensland Coal Investments Pty Ltd (the respondent) in a proceeding related to coal exploration and mining rights. The application was ultimately granted by the Court, leading to a dispute over the costs associated with the application. The respondent sought costs on an indemnity basis, while the applicant argued for costs on the standard basis, as it was successful in the application. The Court found that the respondent should have its costs, as the application sought an indulgence of the Court. However, the Court also found that costs on the indemnity basis were not appropriate as the applicant did not act so unreasonably as to justify an award on that basis.

The legal issues in the case revolved around the appropriate basis for awarding costs in civil proceedings when an application for leave to amend a pleading is granted. The Court had to determine whether the respondent should be awarded costs on the indemnity basis, as sought, or on the standard basis, as argued by the applicant. The Court also had to decide whether any costs thrown away by the applicant should be assessed immediately or reserved until after the trial and determination of the proceeding. The Court concluded that the respondent should be awarded its costs on the standard basis, while any costs thrown away by the applicant should not be assessed until after the trial and determination of the proceeding.

The Court reasoned that the application for leave to amend a pleading sought an indulgence of the Court, which justified awarding the respondent its costs on the standard basis. The Court found that the applicant's conduct did not warrant an indemnity costs order, as it did not act so unreasonably as to justify such an award. The Court also noted that any costs thrown away by the applicant due to the leave to amend should not be assessed immediately, as they would likely be reflected in the overall costs of the proceeding. Instead, the Court ordered that these costs be reserved until after the trial and determination of the proceeding.

The Court's orders were that the applicant pay the respondent's costs of the application assessed on the standard basis, and that the applicant must pay the costs thrown away by reason of its having leave to amend Annexure A, such costs not to be assessed until after the trial and determination of the proceeding. This decision provides guidance on the appropriate basis for awarding costs in cases where an application for leave to amend a pleading is granted, as well as the timing of assessing costs thrown away by the applicant.