Battle v Bundagen Co-operative Ltd (No 3)

In *Battle v Bundagen Co-operative Ltd (No 3)*, the Court of Appeal of New South Wales considered the appropriate costs orders in proceedings where the successful party had failed on discrete issues. The dispute concerned the costs of both the initial proceedings and a subsequent appeal.

The primary legal issue before the Court of Appeal was how to allocate costs when a party, though ultimately successful in the overall litigation, had failed on specific, identifiable issues. This required the court to determine whether the general rule that costs follow the event should be departed from, and if so, to what extent, in light of the partial success and failure of the parties.

The Court of Appeal reasoned that while the Co-operative had been the unsuccessful party in the appeal, Mr Battle had failed on certain discrete issues. Applying the principle that costs should reflect the overall outcome and the success or failure on particular issues, the court determined that a departure from the usual costs order was warranted. The court acknowledged the need to balance the general rule with the specific circumstances of the case, particularly the discrete failures.

Consequently, the Court of Appeal ordered that each party was to bear its own costs of the first instance proceedings. For the appeal, the Co-operative was ordered to pay two-thirds of Mr Battle's costs, with a provision for a certificate under the Suitors' Fund Act if otherwise eligible.