Dresna Pty Ltd v Misu Nominees Pty Ltd

REASONS FOR JUDGMENT (COSTS) KIEFEL, MARSHALL AND JACOBSON JJ: 1 In the application for leave to amend before his Honour the primary Judge Dresna Pty Ltd ('Dresna') was successful in part. His Honour ordered that Dresna pay each of the respondent's costs of the application and the costs thrown away by the amendments. The costs were ordered to be taxed and paid forthwith. His Honour did not give reasons for these orders. It might be that they reflect that Dresna had not been altogether successful, although it appears no allowance was made for the measure of success it did have. Another factor, to which his Honour adverts in his reasons on the substantive application, and which may have been influential as to costs, is the history of the matter. Dresna had by this time made many applications to amend its pleading. 2 On the appeal Dresna succeeded on all issues but one, that which affects the lessor, the first and second respondents. The other respondents argued against the amendments affecting them at some length. 3 There would seem to be no reason to deny Dresna its costs of the appeal against the third, fourth and fifth respondents, given its success. The time taken on the argument on the unsuccessful issue does not persuade us to the contrary. There is no merit in the argument that this Court should postpone a decision on costs pending a determination as to whether the issues are successful. That was not the question before this Court. The question was whether they were at least arguable. 4 The exception to this order concerns the lessor respondents. Dresna did not succeed on its application to plead one further matter against them. They were not involved in the other issues on the appeal. Dresna ought to pay their costs of the appeal, as it concedes. 5 As to the costs of the application below, we are not persuaded that they ought to be revisited. There is no basis for interfering with the order concerning the lessor's costs. And it seems to us that the history of the matter was likely to have been influential in his Honour's approach to costs generally. The only addition that is necessary to that order is that Dresna pay the costs thrown away by further amendments allowed on appeal. 6 The Franklins respondents, the third and fourth respondents, seek a certificate for costs under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). We do not think this is an appropriate case for the exercise of that discretion. There could be no doubt in the parties' minds as to the correct rule of law to be applied on an application for leave to amend. It was simply whether there was an arguable case. 7 There will be orders accordingly. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, Marshall and Jacobson.