WHAT WE WON’T DO! IN A RECENT MATTER IN THE DISTRICT COURT WE ACTED FOR property owners as plaintiffs in proceedings. Our instructions as to the ownership structure turned out to be incorrect and an application for leave to amend the proceedings seemed called for. To seek to avoid the time, effort and expense of the application we sought the defendant’s consent to appropriate orders. To our surprise, they refused even though the proposed amendments were consistent with their pleadings.
The primary reason advanced appeared to be that the application was one requiring the exercise of the court’s discretion and they could not execute a consent. That ignored the possibility that a Registrar faced with the consent could refer the matter to a Judge and also the possibility of writing to the court to explain the concern regarding the discretion.
On hearing, the court granted the amendments we sought. The major dispute was as to costs. Whilst in the usual case our client would expect to pay the defendant’s costs, the court limited those costs to a modest set figure.
So what was achieved? For our client, the error was corrected and some other essential amendments were made. Costs payable to the defendant were limited.
For the defendant? Its lawyers’ costs of the entire process would have exceeded the fixed costs awarded. The defendant gained nothing else from the outcome except a better case against it.
This game playing in litigation is common place. The only winners from it are usually the lawyers. At the 2017 Corporate Conduct and Class Actions Symposium in Melbourne in March 2017 the game playing that characterises such litigation was decried.
Rest assured, Cochrane Leahy Litigation doesn’t operate like that. We are too busy conducting litigation efficiently to engage in such antics.
For more information, please refer to www.cochraneleahy.com.au or contact us on 0421 608 459 or at [email protected].