ITP The Income Tax Professionals Pty Limited v Catherine Suilolovao Tuita and Fisipuna Lakepa Tuiaki [2016] NSWSC 411

Supreme Court New South Wales

Medium Neutral Citation: ITP The Income Tax Professionals Pty Limited v Catherine Suilolovao Tuita and Fisipuna Lakepa Tuiaki [2016] NSWSC 411 Hearing dates: 7 April 2016 Decision date: 15 April 2016 Before: N Adams J Decision: 1 Leave granted to the plaintiff to file the proposed amended Statement of Claim attached to the affidavit of Jeremy David Noonan sworn on 11 February 2016. 2 The plaintiff pay the first defendant's costs thrown away by virtue of the proposed amendment assessed on the ordinary basis. 3 The first defendant pay the plaintiff's costs on the Motion assessed on the ordinary basis. Catchwords: PRACTICE AND PROCEDURE – pleadings – Notices of Motion – application for leave to amend Statement of Claim – application seeking order for particulars

COSTS - indemnity costs Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Category: Procedural and other rulings Parties: ITP The Income Tax Professionals Pty Limited (Plaintiff)

Catherine Suilolovao Tuita (First Defendant) Representation: Counsel: Mr J S Tobin (Plaintiff) Ms F Sinclair (First Defendant)

Solicitors: Benjafield & Associates (Plaintiff) Kingsley Lui (First Defendant) File Number(s): 2015/00112399 Publication restriction: No

Judgment

Background 1. The plaintiff seeks leave to amend its Statement of Claim by Notice of Motion filed on 11 February 2016. There is also before the court a Notice of Motion filed on 18 December 2015 by the first defendant seeking an order for particulars from the plaintiff. It was accepted by the parties that if the plaintiff's Motion is successful there would be no need for me to determine the first defendant's motion. 2. The proposed amended Statement of Claim was annexed to the affidavit of Jeremy David Noonan, sworn on 11 February 2016. No defence has as yet been filed by the first defendant. As at the date of the hearing of these Motions, the Statement of Claim had not been served on the second defendant. Rule 6.2(4)(a) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides that an originating process is only valid for service for six months after the date on which it is filed, which in this case was 15 April 2015. No application to extend that time is made by the plaintiff at this stage. 3. Counsel for the first defendant, Ms Sinclair, indicated for the first time during oral submissions that the first defendant would consent to the amendment being made, conditional upon the plaintiff's agreeing to pay the first defendant's costs thrown away. 4. In its written submissions filed on 30 March 2016, the plaintiff had indicated that it was willing to adopt this course. 5. There no longer being any opposition to the amendment of the Statement of Claim, the only remaining issue for my consideration is the question of costs. The first defendant submits that she should be entitled to the costs of the Motion and her costs thrown away on an indemnity basis or in an amount fixed by the court. The plaintiff submits that it is entitled to the costs of the Motion on an indemnity basis. 6. In order to understand the bases for these applications it is necessary to recount the procedural history of this matter.