Scenic Tours Pty Ltd v Moore (No 2) [2023] NSWCA 101

Scenic Tours Pty Ltd v Moore (No 2) [2023] NSWCA 101

The appellant's limited success on the specific issue of Airfares Damages warranted a costs order in its favour in relation to that issue, but as this was a minor part of the appeal overall, costs should be apportioned at 90% in favour of the respondent for both the appeal (including leave application) and for costs below from 1 May 2020 onwards. The primary judge's costs order should remain for the earlier stage. Orders relating to damages and related procedural matters were to be set aside or varied accordingly.

Jurisdiction
Australia
Judgment Date
18 May 2023
Procedural Posture
Appeal / Final Orders After Appeal; Re Exercise of Costs Discretion
Outcome
Appeal allowed in part; costs orders set aside or varied; costs apportioned 90% in favour of the respondent, save for period before 30 April 2020.
Legal Topics
['costs' 'apportionment of Costs on Appeal' 'setting Aside and Variation of Orders']
['civil Procedure'] ['costs' 'apportionment of Costs on Appeal' 'setting Aside and Variation of Orders']

Case Brief

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Procedural Posture

Appeal / Final Orders After Appeal; Re Exercise of Costs Discretion

Legal Issues

  1. 1 ['How costs should be apportioned following a mixed outcome on appeal' "Whether to disturb primary judge's order as to costs below in light of varied success on appeal"]

Ratio Decidendi

The appellant's limited success on the specific issue of Airfares Damages warranted a costs order in its favour in relation to that issue, but as this was a minor part of the appeal overall, costs should be apportioned at 90% in favour of the respondent for both the appeal (including leave application) and for costs below from 1 May 2020 onwards. The primary judge's costs order should remain for the earlier stage. Orders relating to damages and related procedural matters were to be set aside or varied accordingly.

Court Disposition

Appeal allowed in part; costs orders set aside or varied; costs apportioned 90% in favour of the respondent, save for period before 30 April 2020.

Orders

  • ['The appeal be allowed in part.' 'Orders 3 to 5 and 13 to 18 made on 24 June 2022 set aside.' 'Order 9(b) made on 24 June 2022 set aside.' 'Order 6 made on 26 August 2022 set aside.' 'Common Questions and Answers varied per "Agreed Common Questions & Answers" dated 4 May 2023.' "Order 5 made on 26 August 2022 set...