Carolyn Deigan as executrix for the estate of the late James Boyd Lockrey v Barnard James Fussell (No. 2)

The executrix of the estate of the late James Boyd Lockrey, Carolyn Deigan, appealed to the Court of Appeal of New South Wales against a decision concerning costs in proceedings where Barnard James Fussell was the respondent. The primary judge had made no order as to the costs of the proceedings below.

The central legal issue before the Court of Appeal was whether it should make an order as to the costs of the proceedings below, given that no such order had been made by the primary judge. The Court was also required to determine the costs of the appellant's notice of motion filed on 18 December 2019.

The Court of Appeal reasoned that, in the absence of any information explaining why the primary judge did not make an order as to costs, the general rule that costs should follow the event should apply. As there was no issue of principle to consider, the Court ordered that the respondent pay the costs of the proceedings below and the costs of the appellant’s notice of motion filed on 18 December 2019.