Calvo v Ellimark Pty Ltd (No 2)

The parties to this proceeding were Calvo (the appellant) and Ellimark Pty Ltd (the respondent). The dispute concerned the appropriate orders for costs at first instance and on appeal, following a partial success for the appellant on appeal. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the general rule that costs follow the event should apply to the costs of the appeal and the costs of the first instance proceedings, or whether a fractional costs order was more appropriate given the appellant's partial success.

The Court of Appeal determined that a fractional costs order was warranted. Their Honours reasoned that the appellant had achieved a significant but not complete victory on appeal, and that the respondent had also achieved some success. Applying the principle that costs should generally follow the event, but allowing for departures where justice requires, the Court considered it appropriate to apportion the costs to reflect the degree of success each party had achieved.

The Court ordered that the respondent pay the appellant's costs of the appeal, but that such costs be reduced by 20%. The Court further ordered that the costs of the first instance proceedings be determined by the first instance judge, with liberty to the parties to make submissions on the matter.