Bondi Beachside Pty Ltd v Chief Commissioner of State Revenue (No 2)

[2014] NSWCA 128

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Costs on appeal
4. › Successful appellant's entitlement to costs of proceedings below
5. › Whether departure from usual order warranted where appeal succeeded on point not argued at first instance
6. › Uniform Civil Procedure Rules 2005 (NSW), r 36.16
1. Practice and Procedure
2. › Costs
3. › Variation of costs orders after entry
4. › Whether costs orders should be varied under UCPR r 36.16
5. › Whether failure to foreshadow costs application relevant

Quick Take

Where an appellant succeeds on appeal on a point of statutory construction not argued at first instance, the usual order that the successful appellant recover costs of both the appeal and proceedings below will not be departed from where the new argument was broadly connected to arguments run below, no unnecessary costs were shown to have been incurred, and the hearing below would not have been shorter had the new point been raised. The mere fact that the appeal succeeded on a new point is not, without more, sufficient to justify departure from the usual costs order.