The Nominal Defendant v Roxwood Downs Pty Ltd (No 2)

[2025] NSWSC 811

Supreme Court

New South Wales

Medium Neutral Citation:

The Nominal Defendant v Roxwood Downs Pty Ltd (No 2) [2025] NSWSC 811

Hearing dates:

21 May 2025

Date of orders:

24 July 2025

Decision date:

24 July 2025

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

1.   The Nominal Defendant bear the costs of the defendants’ motions.

2.   Other than those costs, the Council bear the Nominal Defendant’s costs thrown away as a result of the leave it was granted to amend its defence.

Catchwords:

COSTS – costs for multiple concurrent applications – where the usual order is opposed – where first defendant opposes costs thrown away order in favour of plaintiff – plaintiff to bear the costs of the defendants’ motion – where second defendant seeks costs of the motion but accepts a costs thrown away order in favour of plaintiff as result of leave granted

Cases Cited:

The Nominal Defendant v Roxwood Downs Pty Ltd [2025] NSWSC 537

Category:

Costs

Parties:

The Nominal Defendant (Plaintiff)
Roxwood Downs P/L (First Defendant/First Cross-Claimant)
Lake Macquarie City Council (Second Defendant/Second Cross-Claimant)
Surf Life Saving New South Wales (Third Defendant/Third Cross-Claimant)

Representation:

Counsel:
B Jones (Plaintiff)
E Anderson (First Defendant)
T Smartt (Second Defendant)

Solicitors:
Sparke Helmore (Plaintiff)
Taylor Splatt & Partners (First Defendant/First Cross-Claimant)
Moray & Agnew (Second Defendant/Second Cross-Claimant)
Barry Nilsson Lawyers (Third Defendant/Third Cross-Claimant)

File Number(s):

2022/348305

Publication restriction:

Nil

JUDGMENT

1. In May 2025 I gave judgment in respect of two motions, granting leave to amend pleaded defences: TheNominal Defendant v Roxwood Downs Pty Ltd [2025] NSWSC 537. The parties wished to be heard about costs, they not being able to be agreed.

2. The Nominal Defendant sought a departure from the usual order under the Rules that costs follow the event, which on the motions was an order that it bear the costs of the motions. It contending that in all of the circumstances even if the leave sought were granted, a costs order should be made in its favour.

3. Roxwood opposed a costs thrown away order in favour of the Nominal Defendant. It contending that after it had filed its defence in December 2022, communications with the Nominal Defendant had resulted in notice given in February 2023, that it denied that it was the owner of the vehicle involved in the accident. It filed an amended defence later that month and conducted its case thereafter on the basis that it was not the owner.

4. The proceedings were adjourned while the ownership was investigated and in May 2023 its cross-claim was advanced on the basis that it denied such ownership.

5. The practical position was that the Nominal Defendant had been on notice of its position for over two years, during which it had ample opportunity to investigate and serve evidence as to ownership, the onus falling on it to prove that. That there had been wasted costs incurred between December 2022 and February 2023 was not established and should thus not be ordered.

6. The Council sought orders that the Nominal Defendant pay its costs of the motion and that otherwise it pay the Nominal Defendant’s costs thrown away as the result of the filing of its proposed amended defence in April 2025, accepting that would be the usual order where such pleading amendment was permitted.

7. As to its motion, the indulgence principle was argued to be displaced because the Nominal Defendant had unreasonably opposed the filing of its amended defence. That being established by the findings at [29], [30] and [32] of the May judgment.

8. The Nominal Defendant did not wish to be heard on the cases which the other parties advanced.

9. I am satisfied that in all of the circumstances which arise to be considered, which were explained in the May judgment, justice permits the orders which the defendants respectively sought to be made, unopposed as they were.

Orders

10. Accordingly, for these reasons I order that:

1. The Nominal Defendant bear the costs of the defendants’ motions.

2. Other than those costs, the Council bear the Nominal Defendant’s costs thrown away as a result of the leave it was granted to amend its defence.

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