Denjim Pty Ltd v National Gold Pty Ltd; Denjim Pty Ltd v AU Gold Pty Ltd

In the case of Denjim Pty Ltd v National Gold Pty Ltd; Denjim Pty Ltd v AU Gold Pty Ltd, the defendants sought leave to amend their counterclaims and join additional parties. The plaintiff opposed these applications, arguing that the amendments and joinder should not result in costs following the event. The non-parties also argued that the defendants should bear their own costs. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court involved the principles governing the allocation of costs in relation to applications for leave to amend pleadings and joinder. The plaintiff argued that such applications are indulgences granted to the defendants, and therefore, the costs should not follow the event. The defendants, on the other hand, contended that the usual rule of costs following the event should apply.

The court considered the circumstances of the case, including the fact that the defendants were successful in their applications for leave to amend their counterclaims and join additional parties. The court recognised that such applications are indeed indulgences granted to the defendants. However, the court also noted that the plaintiff had been significantly prejudiced by the amendments and joinder, which led to the throwing away of the plaintiff's pleadings. The court held that the defendants should pay the costs of the plaintiff thrown away as a result of the amendments and joinder. Additionally, the court ordered that the costs of the application filed 24 October 2022 and the amended application filed 28 November 2022 be apportioned between the parties.

The court ordered that the costs of the application to withdraw admissions be jointly borne by the plaintiff and the defendants. The plaintiff was to bear the costs of the applications up until 11 November 2022, while the defendants were to bear the costs incurred after that date. The plaintiff, Ashby Mining Limited (formerly known as AMD Resources Limited) and AMDR Operations Pty Ltd, were to jointly and severally pay the defendants' costs incurred after 11 November 2022. The defendants were also ordered to pay the costs of the plaintiff thrown away as a result of the amendments to the defences and counterclaims. Finally, certain pages of an exhibit were to be sealed and marked not to be opened unless by order of the court.