Boland v Dillon; Cush v Dillon

In *Boland v Dillon; Cush v Dillon*, the New South Wales Court of Appeal considered whether a party who had obtained costs orders in a 2010 appeal should be prohibited from enforcing those orders. The original appeal had ordered a re-trial on a limited issue, and subsequently, the High Court dismissed an appeal from those orders. The outcome of the re-trial was favourable to the parties against whom the costs orders had been made.

The central legal issue before the Court of Appeal was whether the circumstances warranted preventing the enforcement of the existing costs orders. This involved an assessment of whether the subsequent favourable outcome of the re-trial, following the dismissal of the High Court appeal, created an equitable basis to restrain the enforcement of the earlier costs orders.

The Court of Appeal dismissed the applications to prohibit enforcement. The Court reasoned that the costs orders made in the 2010 appeal were final and binding. The subsequent re-trial, while favourable to the parties seeking to restrain enforcement, did not retrospectively alter the basis upon which the costs orders were made. The Court applied the principle that costs orders are generally enforceable according to their terms, and exceptional circumstances are required to justify their restraint.

Consequently, the Court ordered that in matter 2009/298338 the Notice of Motion was dismissed, with costs, and in matter 2009/298211 the Amended Notice of Motion was dismissed, with costs.