Ligon Sixty-Three Pty Ltd v ClarkeKann (No 2)

Ligon Sixty-Three Pty Ltd brought proceedings against ClarkeKann, seeking to join two additional defendants, Beazley Singleton Lawyers and Hamilton Island Enterprises Ltd, as parties to the dispute. ClarkeKann opposed the joinder and argued for proportionate liability in relation to the proposed defendants. The court considered the application to join the additional defendants and the application to strike out parts of the defence, ruling against the joinder and striking out the relevant parts of the defence. The court was required to determine the appropriate costs orders, considering the plaintiff's applications to join additional defendants and to strike out parts of the defence, as well as the proposed defendants' counter-applications for costs.

The court held that the plaintiff was entitled to recover its costs of the application to strike out parts of the defence from ClarkeKann, as the application was successful. However, the plaintiff was ordered to pay the costs of the applications to join the additional defendants to Beazley Singleton Lawyers and Hamilton Island Enterprises Ltd on the standard basis. The court found that the plaintiff's pursuit of the joinder applications was not so unreasonable as to warrant an award of indemnity costs, and that there was no suggestion of impropriety on the part of the plaintiff. The court also found that the plaintiff's rejection of offers of compromise by the proposed defendants did not warrant an award of indemnity costs. The court concluded that the plaintiff's assessment of its joinder applications was reasonable and that the defendant's plea of concurrent wrongdoing compelled the plaintiff to apply for joinder, but that the plaintiff was still responsible for the costs of those applications.

The final orders of the court were that ClarkeKann pay the costs of Ligon Sixty-Three Pty Ltd's application to strike out parts of the amended defence. Ligon Sixty-Three Pty Ltd was ordered to pay the costs of its applications to join Beazley Singleton Lawyers and Hamilton Island Enterprises Ltd as defendants, to be assessed upon the standard basis. The court did not make any orders for indemnity costs, finding that the plaintiff's actions were reasonable and not so unreasonable as to warrant such an award. The court's decision highlights the importance of considering the reasonableness of a party's actions when determining costs orders in interlocutory applications.