DIAH (NT) Pty Ltd as Trustee for The Airport Hotel Trust v Darwin International Airport Pty Ltd [2025] NTSC 81

Angkerle Aboriginal Corporation [2025] NTCA 10; Dunn v Yeperenye Pty

Limited & Anor [2025] NTSC 5; referred to.

DIAH (NT) Pty Ltd as Trustee for the Airport Hotel Trust v Darwin

DIAH (NT) PTY LTD AS TRUSTEE FOR THE AIRPORT HOTEL TRUST

• [1] By summons filed 14 July 2025, subsequently amended and filed on 25 August 2025, the Defendant makes application for the amendment of its defence and counterclaim in the proceeding.[1] It relies on the affidavits of Kirby Dixon made 14 July 2025 and 18 August 2025, and Finn Clark made 6 October 2025. The Plaintiff relies on the affidavit of Neil Perl made 21 July 2025. Those affidavits are taken as read.
• [2] At the hearing of the application on 7 October 2025, the parties informed the Court that agreement had been reached in respect to the proposed amendment to the defence and counterclaim such that the order was no longer contested. There was no opposition to an order granting leave to the Defendant to file and serve an amended defence and counterclaim, in terms of the amended pleading annexed as 'KLD-1' to the affidavit of Ms Dixon made 18 August 2025. The remaining matter was that of costs and that decision was reserved.
• [3] The Plaintiff sought its costs of and incidental to the amendment. It also sought its costs of and incidental to the Defendant's summons filed 14 July 2025, which costs it said included the costs incurred incidental to each and every iteration of the proposed amended pleading advanced by the Defendant since orders were made by consent on 17 April 2025.
• [4] To put the matter in context, it is necessary to set out the chronology of the matter, derived from the Court file, and from the affidavits of Kirby Dixon made 14 July 2025 and 18 August 2025, Neil Perl made 21 July 2025 and Finn Clark made 6 October 2025.
• [5] On 18 March 2025, the Plaintiff filed a summons seeking to strike out paragraphs 18(b), 19 and 20 of the Defendant's counterclaim or, in the alternative, an order for further and better particulars. The parties were able to resolve that summons. On 17 April 2025, consent orders were sought and made to the effect that the Defendant was to serve on the Plaintiff further and better particulars of paragraphs 18(b), 19 and 20 of the counterclaim. The Plaintiff's summons was dismissed with no order as to costs.
• [6] Following that date, the Defendant appeared to provide further and better particulars by way of including them in a proposed amended counterclaim to the Plaintiff. On 6 June 2025, the Defendant provided the first proposed counterclaim.[2]
• [7] On 12 June 2025, the Plaintiff advised that that it would not consent to the proposed counterclaim on the basis that it did not satisfy the further and better particulars which it was seeking. The Plaintiff explained the same in a letter dated 19 June 2025.[3]
• [8] On 3 July 2025, the Defendant sent a letter to the Plaintiff with a further proposed amended counterclaim. This purported to take into account the concerns raised by the Plaintiff on 19 June 2025.[4] That further proposed pleading was similarly not acceptable to the Plaintiff. At a Directions Hearing on 7 July 2025, this impasse was communicated to the Court. Orders were then made for the Defendant to make a formal application seeking leave to amend its counterclaim, following which the parties' formal positions could be put to the Court for determination. That application was made on 14 July 2025 by summons, annexing the proposed pleading to Ms Dixon's affidavit made on 14 July 2025. The annexed proposed pleading was in the form as provided to the Plaintiff on 3 July 2025. Written submissions were received by both parties in anticipation of the interlocutory hearing on 31 July 2025.
• [9] The interlocutory hearing was subsequently adjourned to a mention on 7 August 2025. On that date, orders were made inter alia for the Defendant to file and serve an amended summons, and an affidavit containing the proposed amended counterclaim, by 14 August 2025. The matter was adjourned for hearing on 7 October 2025. The further affidavit was made on 18 August 2025 by Ms Dixon. Through correspondence between the parties, it appeared that that version of the proposed pleading satisfied the Plaintiff except in one respect: the scope of the indemnity claim. In correspondence from the Plaintiff of 5 September 2025, it maintained its issue with the indemnity claim provision. However, it was willing to accept confirmation of the necessary limitation of the claim in correspondence rather than relying on a further pleading. The Defendant responded to the Plaintiff on 12 September 2025, narrowing the indemnity claim but using the word "includes" in respect to those particulars of the indemnity. On 16 September 2025, submissions were filed by the Plaintiff in respect to the upcoming hearing on 7 October 2025. Whilst it was conceded that a majority of the issues with the particulars had been resolved, the Plaintiff was still not content with the use of the word "includes" in terms of the scope of the indemnity claim pleaded. On 25 September 2025, the Defendant agreed to alter "includes" to "limited to". That resolved the substantive issue. The Defendant conceded that the Plaintiff would be entitled to costs pursuant to Rule 63.11(7) without an order as to those costs.
• [10] By letter dated 29 September 2025, the Plaintiff indicated that it would agree to consent orders to amend the counterclaim if the Defendant agreed to a costs order of and incidental to the Defendant's summons filed 14 July 2025 (as amended). However, the Plaintiff's entitlement to costs was said to include costs incidental to each and every iteration of the proposed amended pleading which had been advanced by the Defendant since the consent orders were made on 17 April 2025 (i.e. since the order for further and better particulars of paragraphs 18(b), 19 and 20). That is, the Plaintiff sought its costs not only from the date of the application seeking leave to amend on 14 July 2024, but also from 17 April 2025 to 14 July 2025 when it was negotiating the further and better particulars with the Defendant (which were being provided by the Defendant in a proposed amendment form). The basis upon which the Plaintiff says it was entitled to costs pre-14 July 2024 was that the Defendant had essentially failed to properly comply with the consent orders (i.e. for further and better particulars), took two iterations of the proposed pleading, had essentially capitulated on its summons, and ultimately but belatedly addressed all of the objections raised by the Plaintiff. In short, the position which was reached on 7 October 2025, when the order for leave to amend was resolved without contest, could have been reached much earlier without undue costs being incurred.
• [11] The Defendant opposed the Plaintiff's costs post 14 July 2025 on the basis that what had occurred between 14 April 2025 and 14 July 2025 was part of the ordinary course of litigation, and negotiation, between parties. Accordingly, if any entitlement to costs arose, the ordinary rule should apply and those costs would be costs in the cause.

• [12] The effective starting point is Rule 63.11(7)(b), which provides that a party who amends a pleading or other document by leave shall pay the costs of and occasioned by the amendment and the costs thrown away because of the amendment. No order for costs is normally needed. The rule reflects the position that a party who seeks the indulgence of the Court should be responsible to the other party for the costs associated with seeking, and being granted, that indulgence. Rule 63.11 is subject to such other order as the Court makes (Rule 63.11(9)). Here, the Plaintiff seeks "such other order" in terms of ensuring that any costs order extends back to 14 April 2025. That is, a date that pre-dates the summons seeking the amendment.
• [13] A question is whether "costs of and occasioned by the amendment" extends to cover a time period pre-summons seeking leave to amend.
• [14] I also note that the proposition could be put in the alternative. That is, that the Defendant did not reasonably comply with the consent order which had been made on 17 April 2025, belatedly coming to the position it now has. In doing so, it could be argued that the Plaintiff incurred costs occasioned by the Defendant's unreasonable actions.
• [15] Ultimately, I do not think it necessary to decide either proposition definitively. As stated, Rule 63.11(9) provides that the rule is subject to such other order as the Court makes. That is no doubt a reference to the Court's general discretion (Rule 63.03). In respect to costs, the Court's discretion is unfettered but must be properly considered and exercised judicially. That discretion, in the interlocutory context, can be guided by recourse to the principles which underlie the rationale for Rule 63.18: that costs of an interlocutory or other application in a proceeding are to be costs in the proceeding unless the Court orders otherwise. The award of costs occasioned by an amendment (or an application for leave to amend, as in this case), as provided by Rule 63.11, is an exception to Rule 63.18.[5]
• [16] Orders sought in interlocutory applications are generally seen as assisting the management of matters by resolving minor (usually) procedural matters before trial.[6] It is for that reason, and including that a Court may not be in a position to determine where justice lies between the parties, that costs in interlocutory stages are costs in the proceeding unless something prompts departure from that general principle. That departure can be prompted by the existence of exceptional circumstances, such as the unreasonable conduct of the party against whom costs may be awarded. Recently in Sparks NT Pty Ltd v Angkerle Aboriginal Corporation,[7] the Court of Appeal restated the current position (footnotes omitted):

Rule 63.18 of the Supreme Court Rules represents a departure from the usual principle that costs will follow the event. The general approach to the provision is that something in the nature of special circumstances are required before the court will make an order in favour of the party which has succeeded in an interlocutory application. The categories of special circumstance are not closed, but they include such matters as where the unsuccessful party has acted unreasonably ; the interlocutory proceedings have been unnecessarily burdensome ; the application is for an extension of time or some other relief in which the appellant is seeking the indulgence of the court ; the application is effectively determinative of the proceeding ; general interests were served by having a superior Court decide a novel issue ; the application is more akin to a substantive trial than a typical interlocutory application ; or the application is not a 'run-of-the-mill' application because, by way of example, it constitutes an exceptional first review of the substantive relief sought such as an application for an interlocutory injunction or preservation of status.

• [17] In these circumstances, can it be said that the Defendant's conduct in complying with the order to provide further and better particulars was unreasonable up until the time its application for leave to amend was made? Alternatively, can it be said that the Defendant's conduct in proposing amendments and responding to the Plaintiff's concerns was unreasonable, warranting the award of costs against it? The need for the amendment application, because the parties could not agree on the particulars, is not indicative of unreasonableness. It is not unusual, in the course of litigation and the formulation of pleadings, that parties will have differing views on the extent of particulars provided, which may be required in each other's case.[8]
• [18] In the circumstances of this matter, although the end result was arguably what the Plaintiff had contended from the beginning and, from its position, was a waste of its time and resources, that is not the test. The question is whether the Defendant's actions leading up to 14 July 2025 were unreasonable such that it should have costs awarded against it.
• [19] I am not satisfied that the Defendant's actions were unreasonable, nor whether justice between the parties requires a costs order to be made against the Defendant. The Defendant had attempted to provide a proposed amendment which was not suitable to the Plaintiff. Following feedback from the Plaintiff, another attempt by the Defendant was made and was again not suitable to the Plaintiff. I am not able to find that the Defendant's conduct between 17 April 2025 (being the date of the consent order to provide further and better particulars) to 14 July 2025 (being the date the summons to amend the pleading was filed) was unreasonable such that it would warrant a costs order in favour of the Plaintiff, which would depart from the general approach in respect to interlocutory matters. In my view, the costs in respect to that particular period of time should be costs in the proceeding.
• [20] Accordingly, I make the following orders in respect to the Defendant's application seeking leave to amend its defence and counterclaim filed 14 July 2025 and as amended on 25 August 2025:
  1. Leave is granted to the Defendant to file and serve an amended defence and counterclaim in terms of the amended pleading annexed as KLD1 to the affidavit of Ms Dixon made 18 August 2025 and as subsequently agreed between the parties, as evinced by agreement in correspondence passing between them in annexure FHC-1 to the affidavit of Mr Clark affirmed 6 October 2025.
  2. The Defendant is to pay the Plaintiff's costs of and occasioned by the amendment and the costs thrown away because of the amendment, including any costs of the application to amend. Such costs are to be agreed or taxed in default of agreement.
  3. The costs incurred between 17 April 2025 and 14 July 2025, are to be costs in the proceeding.
  4. Certified fit for counsel.

[1] The issue related to amendments to the counterclaim, in particular.

[2] Affidavit of Kirby Dixon made on 14 July 2025 ('Dixon Affidavit'), Annexure KLD-2.

[3] Affidavit of Neil Perl made on 21 July 2025 ('Perl Affidavit), Annexure NP-5; Dixon Affidavit, Annexure KLD-2.

[4] Dixon Affidavit, Annexure KLD-2.

[5] Which, in itself, is an exception to the usual principle that costs follow the event.

[6] See TTE Pty Ltd v Ken Day Pty Ltd (1990) 2 NTLR 143 at 145.

[7] Sparks NT Pty Ltd v Angkerle Aboriginal Corporation [2025] NTCA 9 at [8]- [9]. Although, see G E Dal Pont, Law of Costs (5th Ed, 2021), p 495. Here, it is noted that it should not be assumed that it is only where the circumstances are exceptional will the Court, on the grounds of justice, be minded to make a costs order; the justice of the case must override.

[8] See Dunn v Yeperenye Pty Limited & Anor [2025] NTSC 55.