Louise Developments Pty Ltd v Carpet Call (Vic) Pty Ltd

Supreme Court

New South Wales

Medium Neutral Citation:

Louise Developments Pty Ltd v Carpet Call (VIC) Pty Ltd [2021] NSWSC 1416

Hearing dates:

On the papers

Date of orders:

3 November 2021

Decision date:

03 November 2021

Jurisdiction:

Equity

Before:

Darke J

Decision:

See at [17].

Catchwords:

COSTS – interlocutory applications – amendments to pleadings – by Notice of Motion the plaintiff sought to amend its Statement of Claim to reflect evidence served – Motion resolved by consent except as to costs – amendment resulted in deletion of certain claims against defendant – defendant sought order for costs thrown away by reason of the amendment on the indemnity basis and payable forthwith – held that the plaintiff did not act unreasonably in amending its pleadings – order that the plaintiff pay the defendant’s costs thrown away by the amendment on the ordinary basis – forthwith costs order declined

Legislation Cited:

Conveyancing Act 1919 (NSW) s 133A(1)

Uniform Civil Procedure Rules 2005, r 42.7(2)

Cases Cited:

Wang v Cai (No 2) [2021] NSWSC 1268

Category:

Costs

Parties:

Louise Developments Pty Ltd (Plaintiff)
Carpet Call (VIC) Pty Ltd (Defendant)

Representation:

Counsel:
Mr A F Fernon SC (Plaintiff)
Mr M E Sheldon (Defendant)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Plaintiff)
William James Law (Defendant)

File Number(s):

2020/173356

Publication restriction:

None

Judgment

Introduction

1. These reasons address the costs arising from a Notice of Motion filed by the plaintiff on 3 September 2021. By its Motion, the plaintiff sought leave to file an Amended Statement of Claim and rely upon certain affidavits. The parties reached a consensual position about those issues, and the plaintiff consequently filed an Amended Statement of Claim on 24 September 2021. The question of costs remained unresolved. The Court directed the parties to provide written submissions accordingly.

2. The defendant seeks an order that the plaintiff pay the defendant’s costs thrown away by reason of the amendment to the Statement of Claim. Those costs are sought on the indemnity basis. The plaintiff seeks an order that it pay the defendant’s costs thrown away by reason of the amendment but only on the ordinary basis. The parties are also at issue as to whether the costs should be payable forthwith.

Background

3. These proceedings concern a dispute between the plaintiff lessor and the defendant lessee. By its Statement of Claim filed on 11 June 2020, the plaintiff sought damages for the costs of “make good works” in the sum of $1,274,869.22. The plaintiff also claimed damages for loss of rental income in the period that it says it was unable to relet the premises due to its condition.

4. Annexed to the Statement of Claim was a “Scott Schedule”, detailing the works the plaintiff alleges the defendant was required to complete under the lease. The defendant produced a Scott Schedule in response with the assistance of a qualified consultant and the defendant’s legal team. The defendant denied liability except where expressly admitted in its Scott Schedule. The defendant also denied that the plaintiff was required…