Bevillesta Pty Ltd v D Tannous No 2 Pty Ltd

In *Bevillesta Pty Ltd v D Tannous No 2 Pty Ltd*, the Court of Appeal of New South Wales considered an appeal concerning the primary judge's refusal to order that certain costs be paid forthwith. The dispute arose from an application to make costs orders, previously made by the primary judge, payable immediately rather than at the conclusion of the litigation.

The central legal issue before the Court of Appeal was whether the primary judge had erred in exercising their discretion by refusing to order that the costs awarded to the appellant against the corporate respondents be paid forthwith. This involved an examination of the relevant provisions of the *Civil Procedure Act 2005* (NSW) and the Uniform Civil Procedure Rules 2005 (NSW), particularly in relation to the court's power to order the immediate payment of interlocutory costs.

The Court of Appeal reasoned that while the Uniform Civil Procedure Rules 2005 no longer contained the specific guidance previously found in the Supreme Court Rules 1970 regarding when interlocutory costs could be ordered payable forthwith, the overarching discretion to "otherwise order" was preserved. The court noted that the former rule's inclusion of "justice otherwise demands it" indicated that the discretion was broad and guided by the demands of justice, rather than being confined to a closed list of circumstances. The court found that the primary judge's refusal to order costs forthwith, in circumstances where the appellant contended for such an order due to the conduct of the proceedings, was an error.

Consequently, the Court of Appeal allowed the appeal. It ordered that the corporate respondents pay the costs the subject of specific earlier orders forthwith, in addition to the orders made by the primary judge. The court also made specific orders regarding the costs of the application for leave to appeal and the appeal itself, including a certificate under the *Suitors' Fund Act 1951* (NSW) if qualified.