City of Canada Bay Council v Bonaccorso Pty Ltd (No 3)

[2008] NSWCA 57

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Variation of costs order before entry
4. › Whether exceptional circumstances justified reopening costs issue
5. › Court's failure to give reasons for costs order
6. › Overlooking of parties' submissions
7. › Supreme Court Rules 1970 (NSW), Pt 40 r 9
8. › Uniform Civil Procedure Rules, r 36.16(1)
1. Practice and Procedure
2. › Costs
3. › Apportionment of costs on appeal
4. › Whether issues argued on appeal were separable
5. › Whether discrete unsuccessful issue justified special costs order
6. › Costs follow the event
7. › Successful party failing on separable issue
1. Practice and Procedure
2. › Costs
3. › Remittal of costs to lower court
4. › Whether appellate court should determine costs of first instance proceedings
5. › Complex proceedings at first instance

Quick Take

Where a court makes a costs order without reasons and has overlooked the parties' submissions on costs, this constitutes exceptional circumstances justifying reopening the costs question under r 36.16(1) UCPR. Issues argued on appeal that are factually and legally discrete — even if logically antecedent to each other — are 'separable' for the purpose of apportioning costs, and a successful appellant who fails on a separable issue may be ordered to pay the respondent's costs of that issue.