Reynolds v Qube Logistics

The application of that principle may be modified or displaced where there is conduct on the part of the successful party in relation to the conduct of the litigation that would justify a different outcome. For example, a successful defendant may be refused its costs on the ground that its conduct induced the plaintiff to believe that he or she had a good cause of action.

1. While making no criticism of the error ultimately made by the first defendant's lawyers, the conduct of the Authority in erroneously accepting that the plaintiff was entitled to maintain his cause of action, has induced him to proceed and incur the cost of preparation for trial up until the eve of trial. The dismissal of the proceeding bears no reflection as to the merit of his cause of action against the first defendant but reflects the erroneous acceptance that Victorian law was the applicable substantive law, including the law concerning whether a claim for damages can be made. In those circumstances I have formed the view that the costs of litigation should not, in fairness, lie with the plaintiff. Accordingly, the first defendant is to pay the costs of the proceeding, including the costs of the first defendant's applications and the costs thrown away by reason of the vacation of the trial date on a standard basis.
2. I have included the costs of first defendant's applications, notwithstanding the plaintiff's unsuccessful opposition to those applications. In making the application to amend so late, the first defendant was seeking an indulgence from the Court explicable based upon the error or oversight of its advisors. In my view, the lateness of the application to amend, raised within a month of trial, and the consequences for the plaintiff if the amendment was allowed, made it both reasonable and prudent for opposition to be maintained. The plaintiff should have his costs of the applications.