Agar v McCabe (No 2)

Agar v McCabe (No 2) involved the applicants, Agar and others, who sought an order for the respondents, McCabe and others, to pay costs on an indemnity basis. The applicants were successful in part but not in other aspects of their claims. The case was heard in the Supreme Court of New South Wales. The applicants had initially sought costs on an indemnity basis, but this was later reduced to a costs in the cause order. The respondents did not contest the applicants' entitlement to costs but argued for a costs in the cause order.

The primary legal issue the court had to address was whether the applicants were entitled to costs on an indemnity basis or if a costs in the cause order was more appropriate. The court had to consider the principles of proportionality and consistency in its determination. It was noted that both parties had experienced both success and failure in their respective claims. The court was required to balance the success and failure of each party to ensure the costs order was fair and just.

The court found that the applicants' entitlement to costs should be proportionate to their success and the respondents' entitlement should be proportionate to their failure. The court held that an order for costs in the cause was more appropriate given that neither party had completely succeeded or failed. The court emphasised the need for consistency and proportionality in its reasoning, which led to the conclusion that neither party should bear the entire costs burden. The court declined to make any order as to costs, leaving the matter unresolved in terms of financial implications for the parties.

No specific orders were made regarding costs, leaving the matter open for further consideration or agreement between the parties. The court's decision highlights the importance of proportionality and consistency in assessing costs orders in cases where both parties have experienced varying degrees of success and failure.