The Full Court varied costs orders under r 39.04 to include a 'without prejudice' reservation preserving the Official Trustee's right to claim appeal costs as a cost of administration of the bankrupt estate, notwithstanding the Trustee's failure to raise the issue at the hearing. The Court held that while a party's failure to address costs at hearing calls for explanation and is inappropriate, it is not fatal where the variation is confined, orthodox, and serves the overarching purpose by avoiding further peripheral disputes. The Court separately dismissed the bankrupt appellant's r 39.04 application to set aside the substantive judgment, holding it was in substance an impermissible attempt to re-argue the appeal.
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