Di Carlo v Dubois

The case of Di Carlo v Dubois involved a dispute where the appellant sought leave to amend the statement of claim at trial. The respondents argued that the amendment set up an alternative case, creating a conflict of interest between two of the defendants who were represented by the same counsel and solicitors and insured by the same professional indemnity insurer. The trial judge granted the amendment and ordered the appellant to pay the costs thrown away by the amendment on an indemnity basis. Subsequently, the trial judge granted an adjournment, discharged the jury, and ordered the appellant to pay the costs of the four days of trial thrown away, also on an indemnity basis. The appellant challenged these orders on the basis that the trial judge erred in not reserving the costs to the judge who would hear the second trial and in ordering that the costs be assessed on an indemnity basis.

The legal issues before the court were whether the trial judge erred in ordering the appellant to pay the costs thrown away by the amendment on an indemnity basis and in ordering the appellant to pay the costs of the four days of trial thrown away on an indemnity basis. The court considered the relevant rules of the Uniform Civil Procedure Rules and relevant authorities, including Colgate-Palmolive Company v Cussons Pty Ltd and Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd. The court found that the trial judge erred in ordering that the costs be assessed on an indemnity basis and in not reserving those costs to the judge who hears the second trial.

The court allowed the appeal and set aside the orders as to costs made below. In lieu thereof, the court ordered that the appellant pay the defendants’ costs incurred in consequence of the amendment to the statement of claim and that the costs of the four days of trial be reserved to the judge who hears the new trial of the action. The respondents were ordered to pay the appellant’s costs of and incidental to the appeal on the standard basis.