Leigh-Mardon Corporation Ltd v Titan Corporation Ltd [1996] FCA 1195

JUDGMENT No. JS. wk, IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY No VG 346 of 1993 GENERAL DIVISION BETWEEN: LEIGH-MARDON PTY LTD Applicant AND: TITAN CORPORATION LTD and OTHERS Respondents

COURT: NORTHROP J PLACE: MELBOURNE

DATE: 19 JUNE 1996

REASONS FOR JUDGMENT

There is a motion on notice before the Court by which the respondents are seeking a number of orders relating to questions of costs. The Court has on two occasions ordered that the applicant pay the respondents costs thrown away by reason of amendments to the statement of claim being made by the applicant. The first order was that of Heerey J, on 14 September 1993, where an order was made giving leave to the applicant to amend the statement of claim, but as I understand it there was no order made that the costs of the respondents thrown away by reason of the amendment should be reserved. This is an

interlocutory order and in accordance with the provisions of the rules dealing with

interlocutory orders and, in my opinion the Court can, if need be, re-open the order to deal

with costs - not reserved but which should have been reserved.

The position is, as I understand it, that on interlocutory steps costs in the cause have the effect that those costs follow the event in due course unless some specific order is made later on. Costs reserved in favour of one party or generally, have the effect that unless at the final outcome orders are made in relation to those reserved costs, they also are costs in the cause. Thirdly, the mere fact of an order that costs be paid has the effect of not being taxed and paid immediately unless the Court otherwise orders. This is provided for by Order 62

rule 3 of the Federal Court Rules.

There was no reservation of the costs of the respondents of the order made by Heerey J. It is a well known rule, as I understand it, that where a party seeks leave and obtains leave to amend a pleading the opposing party, almost as of right, has the benefit of an order for the costs thrown away by reason of that amendment. I see no reason why that order should not be made now by way of variation if need be, of the order made by Heerey J, on 14 September 1993. The first order being sought by the motion relates to that order and also an order referred to in paragraph 2C of the affidavit of Mr Newman, where an order was made reserving costs thrown away. In relation to both of those orders, orders are now being sought that those costs be taxed and paid now, pursuant to provisions of order 62 rule 3. There is no doubt