Palamore Pty Ltd v Clode

[1999] WASC 107

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   PALAMORE PTY LTD -v- CLODE [1999] WASC 107

CORAM:   MASTER BREDMEYER

HEARD:   26 JULY 1999

DELIVERED          :   30 JULY 1999

FILE NO/S:   CIV 128 of 1998

BETWEEN:   PALAMORE PTY LTD (ACN 009 122 338)

Plaintiff

AND

JANICE BARBARA CLODE
Defendant

Catchwords:

Costs - Costs thrown away by an amended pleading

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

Plaintiff:     Mr G E Nairn

Defendant:     Mr I A Morison

Solicitors:

Plaintiff:     Macdonald Rudder

Defendant:     Healy Pynt

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. MASTER BREDMEYER:  On 26 July 1999 I made the following orders:

   1.      The defendant have leave to substitute her defence and counter‑claim in accordance with the attached Minute of substituted defence and counter‑claim.

   2.      The attached Minute of substitute defence and counter‑claim do stand as the defendant's substituted defence and counter‑claim and service be dispensed with.

   3.      CAV on costs.

2. This is my reserved decision on costs.  The defendant seeks an order that the costs of the application and costs thrown away be reserved.  The plaintiff seeks orders that the costs of the application and costs thrown away by reason of the amendment, including consideration of the minutes of the proposed defence and counter‑claim of 20 November 1998 and of 8 December 1998, be the plaintiff's in any event.

3. The normal rule on costs when a defendant seeks leave to amend his/her defence is that the defendant should pay the plaintiff's costs of the application and the plaintiff's costs thrown away, in any event.  Part of the costs said to be thrown away in this case are the costs of preparing and filing the plaintiff's reply and defence to counter‑claim on 1 July 1999.  Mr Morison, for the defendant, says that the plaintiff should be denied these costs because the plaintiff's preparation and filing of that pleading was premature.  The plaintiff knew that the defendant proposed amending her defence and counter‑claim and the plaintiff should have waited until that was done before filing its reply and defence to counter‑claim.  The defendant's pleading amendments were necessary to give effect to two decisions of Murray J on preliminary issues.

4. The defendant had given some indication that she intended to amend her defence.  Mr Morison prepared minutes of proposed amended defence and counter‑claim on 20 November 1998 and 8 December 1998 which were used, I understand, in the hearing before Murray J on 15 December 1998 to help the presentation of the defendant's case.  It was probably not necessary for the defendant to finalise those pleadings by obtaining an order for leave to amend, so long as the plaintiff was pursuing its summary judgment application.  Obviously if the plaintiff was successful in that application it was unnecessary for the defendant to amend her defence.  The summary judgment application which was heard on several occasions was completed on 25 June 1999 when I dismissed the application.  It was then desirable for the defendant to prepare her amended defence and counter‑claim and seek leave to do that.  The plaintiff was anxious to proceed with its action and by a fax dated 25 June 1999 to the defendant's solicitors asked that they apply for leave to amend their defence and counter‑claim within 14 days.  No response was received to that fax.  The plaintiff filed its reply and defence to counter‑claim on 1 July 1999.  At a Status Conference on 12 July the Case Management Registrar ordered that the defendant file and serve any application for leave to amend the defence and counter‑claim by 23 July 1999.  The application for leave was made on 23 July.

5. Having requested the amended defence and counter‑claim within 14 days of 25 June, the plaintiff should have waited for the expiration of that period before filing its reply and defence to counter‑claim.  The 14 days expired on 9 July.  The plaintiff did not do so.  Nevertheless the defendant was also at fault.  Her solicitors could have responded to the plaintiff's solicitors' fax of 25 June and said that the amended defence etc would be prepared within a stated time.  Had they responded like that within a few days of 25 June, that would have avoided the plaintiff's filing of the reply and defence to counter‑claim on 1 July.

6. I consider that the defendant's fault was slightly greater than the plaintiff's.  Her solicitors should have responded within a few days to the plaintiff's fax which would have avoided the plaintiff's filing of its reply and defence to counter‑claim, which now has to be redone.  I consider the defendant should pay the plaintiff's costs thrown away in preparing and filing its reply and defence to counter‑claim on 1 July.

7. The plaintiff also seeks, as costs thrown away, the costs of considering the proposed amended defences of 20 November and 8 December 1998.  I do not consider that the plaintiff should get these costs.  Those documents were only proposed defences and they were prepared for and used in the course of the hearing before Murray J.  The plaintiff's costs of considering them should be subsumed in the costs of preparing the application before Murray J.  The plaintiff should not get a separate charge for considering them.  I note that the costs of his two trials on preliminary issues were reserved.

8. I propose making the following orders on costs:

   3.      the defendant is to pay the plaintiff's costs of the application in any event.

   4.      the defendant is to pay the plaintiff's costs of the application thrown away including the costs of preparing and filing the reply and defence to counter‑claim on 1 July 1999, in any event.