PARTIES:	Sam Castrianni v 
	Caroline Steffansen

TITLE OF COURT:	In the Supreme Court of the
	Northern Territory of Australia

JURISDICTION:	Interlocutory Application

FILE NO.:	240 of 1994

DELIVERED:	20 April 1995

REASONS OF:	Master Coulehan

CATCHWORDS:

Practice & procedure - amendment - costs - O.63.04(4) Supreme Court Rules - taxation at an earlier stage - taxation of costs ordered in Local Court

Case followed

TTE Pty Ltd v Ken Day Pty Ltd (1992) 2 NTLR 143

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
240 of 1994			BETWEEN:
					SAM CASTRIANNI
						Plaintiff
					and
					CAROLINE STEFFANSEN
						Defendant

MASTER COULEHAN: DECISION
(Delivered 20 April 1995)

The plaintiff commenced this proceeding in the Local Court in October 1993 claiming $30,415 for work done and material supplied in respect of alterations to a house at Darwin.

On 14 March 1994 the plaintiff was granted leave to amend his statement of claim.   As amended, the claim of the plaintiff relied on breach of contract, the De Facto Relationships Act, a constructive trust and unjust enrichment.

The proceeding was subsequently listed for hearing before the Local Court commencing on 5 October 1994.  On that day the plaintiff's solicitors withdrew and the proceeding was adjourned.  The plaintiff was ordered to pay the defendant's costs thrown away.

On 7 November 1994 the proceeding was transferred to this Court pursuant to s.6(1) of the De Facto Relationships Act.   S.6(4) of the Act provides:-

"(4) Where proceedings are transferred by virtue of this section, the Supreme Court shall, subject to the rules of court, proceed as if the proceedings had been originally instituted in that Court."

The plaintiff has applied to further amend his statement of claim.   In effect, the claim pursuant to the De Facto Relationships Act has been abandoned.

The defendant has not objected to the form of the amended statement of claim but argues that the plaintiff should be required to pay the costs incurred to date before being allowed to proceed.

Leave to amend the statement of claim was granted and the question of costs remains to be resolved.

It is disclosed in the affidavit of Janet Terry sworn 13 April 1995 that there are already several costs orders against the plaintiff amounting to a sum in the vicinity of $1838.   It is estimated that the costs thrown away as a result of this application will be around $2500.
 
I consider it proper that the plaintiff pay the defendant's costs of this application as well as the costs thrown away as provided by O.63.11(7).

O.63.04(3) provides that the costs of an interlocutory application shall not be taxed until the conclusion of the proceeding.   However, O.63.04(4) provides:-

"(4) If it appears to the Court when making an interlocutory order for costs or at a later time that all or part of the costs ought to be taxed at an earlier stage, it may order accordingly".

In TTE Pty Ltd v Ken Day Pty Ltd (1992) 2 NTLR 143 at p.145 Martin J said:-

"As to taxation and payment of interlocutory costs ordered to be paid by one party to another, a just approach to take is to consider whether the successful party ought reasonably to have anticipated interlocutory proceedings of the kind in question.   If so, then he should have anticipated bearing the expense, at least to the conclusion of the proceedings, and not reckoned on having it paid for by the other party. If, however, the kind of interlocutory application or the number of them could not have been so anticipated, then there may be a better case for ordering that the successful party's costs be taxed and paid earlier."

The defendant could not reasonably have anticipated bearing the expense of the second application for an amendment and it is appropriate that the costs of the application and costs thrown away be taxed.

As it appears that the defendant would have been able to proceed to tax costs already ordered in the Local Court it is appropriate that she be given leave to do so under O.63.04(4) of the Supreme Court Rules.

I am not disposed to grant a stay because it may further delay preparation for trial.

It is ordered:-

	1.	That the plaintiff pay the defendant’s costs of this application.

	2.	That the defendant have leave to tax all costs 		ordered to date and the costs thrown away by reason 		of this application.