AMA Group Limited v Assk Investments Pty Limited (No 2)

AMA Group Limited (Appellant) appealed a decision of the primary judge concerning the interpretation of a settlement agreement. The dispute arose from the Appellant's claim that Assk Investments Pty Limited (Respondent) had breached the settlement agreement by failing to pay certain amounts. The appeal was heard by Bell P, Leeming JA, and Emmett AJA in the Court of Appeal of the Supreme Court of New South Wales.

The central legal issue before the Court of Appeal was whether the usual rule that costs follow the event should be departed from, and if so, to what extent. This question arose because the Appellant succeeded on appeal on a point that differed from the argument it had advanced orally at first instance, although not in writing. The Court was required to consider whether this departure from its initial oral submissions justified a modification of the standard costs order.

The Court reasoned that while the Appellant was the successful party on appeal, its success on a point not fully articulated or pursued at first instance warranted a partial departure from the usual costs order. The Court exercised its discretion, considering all the circumstances of the case, including the nature of the successful argument and its relationship to the proceedings at first instance.

Consequently, the Court ordered that the Respondent pay 50% of the Appellant’s costs of the appeal.