Supreme Court New South Wales Medium Neutral Citation: Westpac Banking Corporation v Makhoul [2018] NSWSC 883 Hearing dates: 1 June 2018 Decision date: 01 June 2018 Before: McCallum J Decision: Plaintiff granted leave to file and serve a third further amended statement of claim by 8 June 2018; third and fourth defendants to file and serve a defence to the third further amended statement of claim and any cross-claim by 29 June 2018; plaintiff to pay the third and fourth defendants' costs thrown away by reason of the amendment; costs of the plaintiff's notice of motion filed 13 November 2017 to be costs in the cause Catchwords: COSTS – application for costs thrown away by reason of amendment – no question of principle Category: Costs Parties: Westpac Banking Corporation (plaintiff) Yvonne Makhoul (first defendant) Johan Makhoul (second defendant) Property Bound Pty Ltd (third defendant) Robert Germanos (fourth defendant) Representation: Counsel: S Docker (mentions first defendant) J P Makhoul (self-represented – second defendant) A K Flecknoe-Brown (third and fourth defendants) Solicitors: Kemp Strang (plaintiff) Benjamin Khoury Solicitors (first defendant) Barry Nilsson Lawyers (third and fourth defendants) File Number(s): 2015/07103 Publication restriction: None Judgment – EX TEMPORE 1. HER HONOUR: These proceedings came before me on 11 May 2018 to determine an application by the plaintiff to amend. The application was resolved shortly before the scheduled hearing following the plaintiff's serving a revised version of the proposed amendment. As a result of that revision, the third and fourth defendants consented to the amendment they had previously opposed. In the meantime, a significant amount of work had been done preparing submissions relating to an issue raised by the earlier iteration of the amendment. That left in play a question of costs which the parties suggested I should defer to be determined today. 2. The plaintiff accepts that it should pay the third and fourth defendants' costs thrown away by reason of the amendment as filed but says the costs of the notice of motion should be costs in the cause. The defendants submit that the costs thrown away should include the costs thrown away by reason of the late revision to the proposed amendment. That is opposed by the plaintiff on the basis that the principal basis for opposing the original amendment (referred to in the submissions as the issue of approbation and reprobation) raises an issue which may remain in contest at the final hearing. 3. On the last occasion Mr Flecknoe‑Brown, who appears for the third and fourth defendants, suggested that the determination of the application for costs might be deferred until today, in part because he was not in a position then to respond to that contention. He wished to have an opportunity to consider the correctness of the plaintiff's apprehension that the question of approbation and reprobation may remaining alive for the trial (which would mean that the work done on that issue would not have been wasted). 4. Mr Flecknoe‑Brown's position remains the same today because he has found, not unreasonably, that it is not possible at this stage to form a final view on that issue. Doing the best I can in all of the circumstances, I think there is at least a strong prospect that the work done in preparation for the motion will not ultimately prove to have been wasted or thrown away. On that basis, I make the orders proposed by the plaintiff set out in the short minutes handed up by Mr Docker. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2018