Fordyce v Fordham

The appeal concerned the appropriate costs orders to be made following the dismissal of proceedings without a final determination. The parties were the claimant and the opponents, and the matter came before the Court of Appeal of New South Wales.

The central legal issue was whether the primary judge erred in ordering the claimant to pay the opponents' costs of the Supreme Court proceedings, given the circumstances of the dismissal. This involved considering the application of section 98 of the *Civil Procedure Act 2005* and rules 42.19 and 42.20 of the *Uniform Civil Procedure Rules*.

The Court of Appeal allowed the appeal, setting aside the primary judge's costs order. The Court reasoned that in circumstances where proceedings are dismissed before a final hearing, and particularly where there may be a degree of shared responsibility for the proceedings not reaching that stage, an order for each party to bear their own costs is often the more appropriate and just outcome. This approach acknowledges the complexities and potential for interlocutory disputes to contribute to the ultimate resolution without a full trial.

Consequently, the Court ordered that each party was to pay their own costs of the Supreme Court proceedings and the appeal. Further directions were given regarding written submissions on the costs of a specific hearing on 23 November 2005.