Under the UCPR, there is no general rule or prima facie expectation that a party who files a submitting appearance 'save as to costs' will be immune from costs liability. The former Part 52A rule 12(1) of the Supreme Court Rules 1970 (NSW), which provided that an appellant was to pay the costs of a submitting respondent, is no longer operative. The costs consequences of a submitting appearance are to be determined according to the circumstances of the case, with particular attention to the context in which the appearance was filed. A respondent in a true adversarial position in a commercial dispute who files a submitting appearance rather than consenting to the relief sought may be ordered to pay the successful appellant's costs.
The full text is available to signed-in members, including the 27 later cases that cite this judgment.
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