Background
White Oak sought an interlocutory application to further amend its originating application and statement of claim in complex consolidated proceedings involving 11 related matters concerning insurance policy disputes arising from the Greensill Bank collapse. The BCC/TM Parties (BCC Trade Credit Pty Ltd, Tokio Marine & Nichido Fire Insurance Co Ltd, and Tokio Marine Management (Australasia) Pty Ltd) opposed the application on three grounds: the proposed amendments pleaded inconsistent matters cumulatively rather than as alternatives; White Oak’s misrepresentation case lacked necessary particulars regarding the cause of loss; and White Oak sought to withdraw an admission that USD 41,499,961 had been received as mitigation of losses.
At the 3 July 2026 hearing, White Oak conceded the substantive points raised by the BCC/TM Parties. White Oak agreed to provide missing particulars and retain language necessary to preserve the admission. White Oak also acknowledged that its proposed Sixth Amended Statement of Claim contained incoherent pleadings in certain respects. The parties subsequently reached agreement on what amendments should be permitted, but disagreed on whether White Oak should pay the BCC/TM Parties’ costs of the application.
The Court’s Holding
Justice Thawley ordered White Oak to pay the BCC/TM Parties’ costs of the interlocutory application. The court rejected White Oak’s argument that the costs should be treated as costs in the proceedings under the principle from Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, finding instead that the BCC/TM Parties had “made good” their complaints and succeeded in their opposition.
The court applied the established principle that a party seeking an indulgence—such as permission to amend pleadings—should ordinarily pay the opposing party’s costs whether or not the application ultimately succeeds. Justice Thawley rejected White Oak’s collateral arguments, including that the court (not the BCC/TM Parties) had identified key incoherent paragraphs, that some amendments merely copied earlier Credit Suisse pleadings, and that certain complaints had not been pressed. The court noted that the three main issues had been addressed in prior correspondence and that narrowing complaints in complex litigation is routine and does not defeat a costs award.
Key Takeaways
- A party seeking amendment to pleadings bears the costs burden of opposing parties even when the application is partially granted or when the parties later agree on the substance.
- Procedural defects in pleadings—including incoherence, inconsistency, and missing particulars—give rise to costs awards in favour of opposing parties who identify and successfully oppose them.
- The standard starting point in costs questions is that indulgences are paid for by the seeking party; White Oak advanced no compelling reason to displace this principle.
- Close proximity to trial and delayed identification of pleading defects do not excuse the amending party from bearing opponents’ costs.
Why It Matters
This costs decision reinforces settled principles governing the financial exposure of parties who seek to amend pleadings in commercial litigation. For practitioners, it demonstrates that even partial success on an amendment application—or subsequent agreement with opponents on the final form of amendments—will not shield the amending party from a costs order. The decision is particularly significant in complex multi-party disputes where pleading coherence is critical and trial dates are imminent.
The judgment also illustrates judicial practice in consolidated proceedings: White Oak’s delayed amendments (over six months after Credit Suisse had made similar changes) and the pleading defects that only became apparent near trial triggered the costs penalty. The decision sends a clear signal that diligence in formulating pleadings and early identification of incoherence are necessary to avoid costs liability, regardless of whether ultimate agreement is reached.
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