Access Training Group Ltd v Jane

The appeal before the Court of Appeal of New South Wales concerned a dispute between Access Training Group Ltd (AGT) and Jane, regarding whether payments totalling $1.3 million were made by Jane to AGT as a loan. AGT contended that the payments were not loans, while Jane argued they were. The primary judge had made orders in favour of AGT, but the costs order was that each party bear their own costs due to a "mixed" result.

The legal issues before the Court of Appeal were whether the primary judge erred in finding that the payments were not a loan, and whether the primary judge erred in the costs order. Specifically, the court had to determine if the evidence established a common assumption between the parties as to the nature of the sum, and whether private, uncommunicated views inconsistent with an asserted characterisation could override the objective assessment of the parties' intentions. The court also considered the appropriate approach to costs where the substantive result was mixed, and the application of rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW).

The Court of Appeal dismissed the appeal, finding no error in the primary judge's substantive findings. The court reasoned that the objective conduct and communications of the parties were determinative of their intentions, and private, uncommunicated views could not alter the characterisation of the transaction. Regarding costs, the court allowed the cross-appeal, holding that the primary judge's order for each party to bear their own costs was not appropriate given the overall judgment in favour of AGT. The court found that the "event" for the purposes of rule 42.1 was the final outcome, and that an apportionment of costs on an impressionistic basis was necessary.

Consequently, the appeal was dismissed with costs. Leave was granted to the cross-appellants to cross-appeal against the costs orders. The cross-appeal was allowed, setting aside the previous costs orders and substituting new orders that apportioned 75% of the costs in each proceeding to the losing party, leaving aside interlocutory costs. The cross-respondents were ordered to pay the cross-appellants’ costs of the cross-appeal.