Creak v Ford Motor Company of Australia Ltd (No 2)

In *Creak v Ford Motor Company of Australia Ltd (No 2)*, the Court of Appeal of New South Wales considered an appeal and cross-appeal concerning the costs of proceedings below. The appellant, Mr Creak, had brought proceedings against the respondent, Ford Motor Company of Australia Ltd, and a second defendant. The appeal and cross-appeal arose after the primary judge made orders regarding the costs of the proceedings below.

The central legal issue before the Court of Appeal was how to allocate the costs of both the proceedings below and the appeal itself, given that neither party had been wholly successful. Specifically, the court had to determine the appropriate apportionment of costs, considering the degree of success each party achieved on the various contested issues.

The Court of Appeal reasoned that while the appellant had achieved some success on a discrete aspect of his claim, the respondent had been substantively successful on the balance of the contested issues. Applying the general principles of costs, and noting that no issue of principle arose, the court made specific orders regarding the apportionment of costs. The second defendant was ordered to pay 80% of the plaintiff's costs of the proceedings below, with interest to be calculated on a specific basis. Furthermore, the appellant was ordered to pay 75% of the respondent's costs of the appeal. The calculation of interest on these costs was also detailed, subject to any contrary agreement between the parties.