Larsen v Tastec Pty Ltd (No 2) [2023] NSWCA 141

Larsen v Tastec Pty Ltd (No 2) [2023] NSWCA 141

The application to vary the costs orders was dismissed because setting aside the District Court judgment necessarily put the District Court costs order in issue and the preferable course was for the District Court on remitter to determine all costs questions after determining the remitted ACL issues. Ground 1A was the most significant appeal ground, the appellants also succeeded on Ground 1, Ground 3 was not abandoned except as to the Cracking Damage aspect and was unnecessary to determine because of overlap with Ground 1A, and the unsuccessful grounds did not feature significantly. The appellants obtained the relief sought, so there was no basis to vary Order 1 to say the appeal was...

Jurisdiction
Australia
Judgment Date
27 June 2023
Procedural Posture
Costs Application Following Appeal / Notice of Motion to Vary Orders of the Court Dated 9 March 2023, Determined on the Papers
Outcome
The respondents' application to vary the orders of the Court dated 9 March 2023 was dismissed with costs.
Legal Topics
['variation of Orders' 'uniform Civil Procedure Rules 2005 (nsw) R 36.16' 'costs Orders Following Mixed Success on Appeal' 'remitter to District Court' 'australian Consumer Law Relief']
['costs' 'civil Procedure' 'consumer Law'] ['variation of Orders' 'uniform Civil Procedure Rules 2005 (nsw) R 36.16' 'costs Orders Following Mixed Success on Appeal' 'remitter to District Court' 'australian Consumer Law Relief']

Case Brief

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Procedural Posture

Costs Application Following Appeal / Notice of Motion to Vary Orders of the Court Dated 9 March 2023, Determined on the Papers

Legal Issues

  1. 1 ['Whether the Court should set aside its order setting aside the District Court costs order in favour of the respondents.' 'Whether the Court should vary the remitter order so that only the costs of the remitted proceedings remained outstanding.' "Whether the Court should set aside the order requiring the respondents to pay the appellants' costs of the appeal because the appellants did not succeed on all grounds." 'Whether Order 1 should be varied from "Appeal allowed" to "Appeal allowed in part".']

Ratio Decidendi

The application to vary the costs orders was dismissed because setting aside the District Court judgment necessarily put the District Court costs order in issue and the preferable course was for the District Court on remitter to determine all costs questions after determining the remitted ACL issues. Ground 1A was the most significant appeal ground, the appellants also succeeded on Ground 1, Ground 3 was not abandoned except as to the Cracking Damage aspect and was unnecessary to determine because of overlap with Ground 1A, and the unsuccessful grounds did not feature significantly. The appellants obtained the relief sought, so there was no basis to vary Order 1 to say the appeal was...

Court Disposition

The respondents' application to vary the orders of the Court dated 9 March 2023 was dismissed with costs.

Orders

  • ["The respondents' application to vary the orders of the Court dated 9 March 2023 is dismissed with costs."]