Allplastics Engineering Pty Ltd v Dornoch Ltd

Allplastics Engineering Pty Ltd (the claimant) sought leave to appeal against costs orders made by Acting Judge Bowden in the District Court of New South Wales. The dispute concerned delays in the claimant's filing of affidavit evidence, which had prevented the progress of the trial. The original costs orders directed the claimant to pay all of the respondent's costs until the affidavits were served.

The primary legal issue before Santow and Tobias JJA was whether the costs orders made by the primary judge were punitive in nature and, if so, whether they were justified. The court was required to consider the purpose of costs orders and the principles governing their imposition, particularly in circumstances of delay and non-compliance with court directions.

The Court of Appeal allowed the appeal, finding that the original costs orders were punitive and that the primary judge had not provided sufficient reasons for making such orders. The court reasoned that costs orders should generally reflect the costs incurred due to a party's conduct, rather than being punitive. Accordingly, the court set aside the original costs orders, save for the costs of the day. In their place, the court ordered that the claimant pay the costs of the opponent thrown away or incurred solely as a consequence of the claimant's non-compliance with previous court orders regarding the filing and service of affidavit evidence. The court also made orders regarding the costs of the appeal itself.