Commonwealth Bank of Australia v Peto

REASONS FOR JUDGMENT 1 The Commonwealth Bank of Australia ('the Bank') in both proceedings has applied to amend its pleadings. The amendment process commenced on about 28 October 2005 and has evolved over the last few months with the bank making a number of refinements to proposed amendments. 2 The respondents to this application, who are the first to sixth respondents in the proceedings brought by the bank ('the Bank proceedings'), and Advanced Switching Systems Pty Ltd ('ASS') in the other proceedings ('the ASS proceedings'), have been put to some more extra expense than would be usual in an amendment application by the variety of changes that the bank has made to its pleadings. I am of opinion that in the exercise of my discretion I ought to order that the bank in each proceeding pay to the other parties their costs of and thrown away by each amendment which it seeks to make. I am also of opinion that the bank should pay the costs of today of those parties in any event. 3 The respondents to the Bank's application applied for an order that the costs, which I have suggested be awarded, be all assessable and payable forthwith. The Bank resists that application by submitting that this is not a case out of the ordinary and that it would be some form of admonishment to it to have such an order made. 4 In a usual amendment situation the ordinary course would be that an order would be made that would not be assessable forthwith. It seems to me that on the material before me and as a matter of common sense the respondents to the Bank's application have had a degree of extra expense that they would not have had to incur in a usual amendment application. 5 I think that the fair way of compensating the unusual procedural history that this application has had is to order that the costs of and thrown away by the amendment be assessable forthwith. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.