Waterman v Gerling (Costs)

[2005] NSWSC 1111

Supreme Court of NSW

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Successful plaintiff
4. › Late amendment substantially altering case
5. › Whether defendant entitled to costs down to date of amendment
6. › Whether severable issue on which plaintiff failed
7. › Whether sufficient cause to deprive plaintiff of costs
1. Practice and Procedure
2. › Costs
3. › Beoco rule
4. › Late amendment without which action would fail
5. › Application where plaintiff is true victor
6. › Whether rule confined to cases where defendant is true victor
1. Practice and Procedure
2. › Declaratory relief
3. › Whether declaration appropriate where no evidence of loss attracting cover
4. › Whether declaration would go beyond issue estoppel established by judgment

Quick Take

The Beoco rule — that where a plaintiff makes a late amendment substantially altering the case without which the action would fail, the defendant is entitled to costs down to the date of amendment — is properly confined to cases where, despite the plaintiff's nominal success, the defendant is the true victor. Where the plaintiff recovers in substance what was sought, the rule does not apply, and the court will consider whether the issues on which the plaintiff failed were clearly severable, whether the claim would have been resisted regardless, and whether there was earlier notice of the successful ground.