White v Lachlan Shire Council (No 1) [2017] NSWDC 132

District Court New South Wales

Medium Neutral Citation: White v Lachlan Shire Council (No 1) [2017] NSWDC 132 Hearing dates: 4 May 2017 Date of orders: 02 June 2017 Decision date: 02 June 2017 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. Pursuant to s 98(1) of the Civil Procedure Act 2005, the plaintiff is ordered to pay the defendant's wasted costs incurred consequent upon the plaintiff's successive applications to further amend his statement of claim and the related need to vacate hearing dates;

2. The costs that are the subject of Order (1) above are assessed in the gross sum of $90,000 including GST, and those costs are to be paid by the plaintiff to the defendant within 21 days of today's date;

3. For reasons of procedural fairness, the question of whether the plaintiff should be indemnified by any person for the costs that are the subject of orders (1) and (2) above, is deferred, and is reserved to be determined after the delivery of the separate final judgments on the liability and quantum issues in the proceedings;

4. Liberty to apply on 7 days' notice if the plaintiff seeks to vary the time for payment identified in Order (2) above. Catchwords: COSTS – wasted costs order made in favour of defendant following substantial expansion and changes to plaintiff's pleaded case Legislation Cited: Civil Liability Act 2002, s 5B Civil Procedure Act 2005, s 26, s 56 s 57, s 58, s 60, s 64, s 98 Uniform Civil Procedure Rules 2005, r 28.2 Cases Cited: Bellevista v D Tannous Ltd [2010] NSWCA 277 Fiduciary Ltd v Morning Star Research Pty Ltd (2002) 55 NSWLR Hamod v State of NSW [2011] NSWCA 375 Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 House v The King [1936] HCA 40; (1936) 55 CLR 449 Hypec Electronics Pty Ltd (in liquidation) v Mead [2004] NSWCA 221; (2004) 61 NSWLR 169 James v Phillips (No 2) [2017] NSWSC 257 Kelly v Jowett [2009] NSWCA 278 Knight v FP Special Assetts Ltd (1992) 174 CLR 178 Lemato v Abel Technical Pty Ltd (2005) 63 NSWLR 300 McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 306 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31 Styles v Wolondilly Shire Council (No 3) [2001] NSWLEC 133 Category: Costs Parties: Gary White (Plaintiff) Lachlan Shire Council (Defendant) Representation: Counsel: Mr T Boyd (Plaintiff) Mr JT Gibson (Defendant)