Katherine Stores Pty Ltd (in liq) v B & D Lane Pty Ltd [1996] NTSC 39; 5 NTLR 152 (23 May 1996)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA MASTER COULEHAN CWDS Costs. HRNG DARWIN, 23 May 1996 #DATE 23:5:1996 #ADD 13:2:1997 Appearances not available ORDER Judgment for defendant. JUDGE1 MASTER COULEHAN

1. On 26 April 1996 judgment was entered for the defendant in this proceeding (see reasons dated 26 April 1996, unreported, available on SCALE). The defendant now seeks costs.
2. The plaintiff failed in this proceeding because the claim was brought in its name instead of that of the liquidator.
3. The defence was filed on 4 May 1995. No issue as to the name of the plaintiff was raised until 14 December 1995.
4. While it may not have been necessary to plead this issue in the defence (see Markorp v King 106 FLR 286, 291), there is no reason why it could not have been raised earlier, thus saving both parties costs subsequently incurred. In these circumstances I do not consider it appropriate that the defendant be awarded its costs of the proceeding.
5. As to the costs of the application for judgment and the application to amend, there are grounds for departing from the usual order (see O.63.18 and TTE Pty Ltd v Ken Day Pty Ltd The failure to sue in the name of the correct party was the mistake of the plaintiff and it was necessary for the defendant to bring the application to put an end to the proceeding and to resist the application to amend.