Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2) [2021] NSWCA 98

Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2) [2021] NSWCA 98

The appropriate costs order is that the respondents pay 50% of the appellant's costs below, recognising the appellant's dominant and severable success on type 1 defects, subject to separate orders regarding specific notices of motion. The respondents' late application to vary the appeal costs order is dismissed for being out of time and for lack of sufficient reason to depart from the general rule.

Jurisdiction
Australia
Judgment Date
20 May 2021
Procedural Posture
Appeal / Costs Determination Following Appeal Judgment
Outcome
Respondents' amended notice of motion dismissed with costs. Costs below apportioned 50% in appellant's favour, subject to exceptions for specific notices of motion.
Legal Topics
['costs' 'party/party Costs' 'discretion' 'multiple Issues' 'variation of Costs Order']
['civil Procedure'] ['costs' 'party/party Costs' 'discretion' 'multiple Issues' 'variation of Costs Order']

Case Brief

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Procedural Posture

Appeal / Costs Determination Following Appeal Judgment

Legal Issues

  1. 1 ['What is the appropriate apportionment of costs in proceedings involving severable and dominant issues where the appellant succeeded in part on appeal?' 'Whether a final costs order of the appeal could be set aside or varied upon an out-of-time notice of motion pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A)' 'Application of the general rule that costs follow the event in cases involving mixed success']

Ratio Decidendi

The appropriate costs order is that the respondents pay 50% of the appellant's costs below, recognising the appellant's dominant and severable success on type 1 defects, subject to separate orders regarding specific notices of motion. The respondents' late application to vary the appeal costs order is dismissed for being out of time and for lack of sufficient reason to depart from the general rule.

Court Disposition

Respondents' amended notice of motion dismissed with costs. Costs below apportioned 50% in appellant's favour, subject to exceptions for specific notices of motion.

Orders

  • ["Dismiss the respondents' amended notice of motion filed on 11 March 2021 with costs." "Respondents pay 50% of the appellant's costs of the proceedings below, subject to orders (3) and (4)." "Appellant pay respondents' costs of the appellant's notice of motion filed on 8 February 2018 to amend its defence."...