The recent decision in Staley v Pivot Group Pty Ltd [No 4]  WASC 120 was a salient reminder to litigants of the costs risks that are attracted to ill conceived litigation.
In this case the plaintiffs were not only wholly unsuccessful but had certain costs of the action awarded against them on an indemnity basis.
The action was described by the trial Judge in his final judgment ( WASC 228) as a matter in which the plaintiff’s case was somewhat of a moving feast  and in which ‘the plaintiffs’ seemingly perpetual motion has produced … the unfortunate consequence that was essentially a neighbourhood boundary dispute … and could not be resolved by less formal means, rather than by a full scale … trial …’ and was a case ‘in a state of flux and revision …’.
The plaintiffs made significant amendments to their case during the course of trial, necessitating an adjournment of the trial.
In an interlocutory application for costs thrown away because of the adjournment, the defendant sought an order for indemnity costs against the plaintiffs as a consequence of the costs attributable to those amendments and the adjournment. That application was granted because the Judge formed the view that it was in the interest of justice ‘for a Court to deliver a viable and realistic costs thrown away remedy in outcome, rather than an order that an impracticable application may not … provide a fair measure of recompense for the degree of waste and loss that is actually sustained by reason of a late change in pleadings, just before a trial begins’.
Coupled with the recent decision of Aon Risk Services v ANU  239 CLR 175, the important lesson is that the courts’ increased willingness to respond to late and significant amendments is to take a far firmer stance than previously. If those amendments are allowed then the amending party will pay a price and the consequence on the innocent party will be reduced.
The case highlighted that it is of vital importance for a party properly to identify the nature of their case well before the trial of an action. If a party fails to do so, the costs of their conduct will be adequately to recompense the party inconvenienced by their lack of organisation and preparation.
For further information please contact Partner, Iain Freeman on 08 9288 6759 / firstname.lastname@example.org