Berkeley Challenge Pty Ltd v Howarth (No 2)

In *Berkeley Challenge Pty Ltd v Howarth (No 2)*, the New South Wales Court of Appeal considered an application for costs following an appeal where the appellant had achieved only partial success. The dispute concerned the assessment of damages awarded in the primary proceedings, and the appeal raised multiple issues, leading to a situation where neither party had been entirely successful.

The central legal issue before the Court of Appeal was how to apportion the costs of the appeal in circumstances where the appellant had succeeded on some grounds but failed on others. This required the court to determine the appropriate application of the general rule that costs follow the event, and whether the degree of success achieved by each party warranted a departure from that rule.

The Court reasoned that a strict application of the general rule would be unjust given the mixed outcome of the appeal. It acknowledged that the appellant had achieved a significant, albeit not complete, success in overturning aspects of the primary judge's assessment of damages. Consequently, the court determined that an apportionment of costs was necessary to reflect the relative success of each party. The court ordered the respondent to pay 50% of the appellant's costs of the appeal.