The Court of Appeal has jurisdiction under s 75A(6) and (10) of the Supreme Court Act 1970 (NSW) and s 98 of the Civil Procedure Act 2005 (NSW) to make costs orders that incidentally benefit non-parties to the appeal, where such orders are required by the nature of the case. Where a plaintiff succeeds against some but not all commonly-represented defendants, a per-defendant costs order is appropriate. Restitution of judgment debts paid where the judgment is set aside on appeal is a matter of right, not discretion, and cannot be made conditional on the outcome of a remitted hearing.
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