Al Maha Pty Ltd v Coplin (No 2)

Al Maha Pty Ltd appealed to the Court of Appeal of New South Wales against orders made by a primary judge concerning costs. The primary judge had upheld claims against Al Maha but dismissed claims against Mr Coplin, and had awarded costs against both Al Maha and Mr Coplin. Al Maha sought to join Mr Coplin as a respondent to its appeal and sought an order dismissing the statement of claim with costs.

The central legal issue before the Court of Appeal was whether it possessed the power to order a plaintiff to pay the costs at first instance and on appeal of a defendant who had been successful at first instance. A further question was whether, even if such power existed, it should be exercised in the circumstances of the case, with the court noting that no question of principle was involved.

The Court of Appeal determined that it did have the power to make such orders. However, it declined to exercise that power in favour of Mr Coplin. The court reasoned that the general rule that costs follow the event, which would ordinarily favour a successful defendant, was displaced by the specific circumstances of the case. The court ultimately dismissed Mr Coplin’s notice of motion and ordered Mr Coplin to pay the costs of Al Maha and PropertyFox of that motion.