Hamcor Pty Ltd v Marsh Pty Ltd

Hamcor Pty Ltd, the appellant, sought leave to make submissions as to the costs of an appeal against Marsh Pty Ltd, the respondent, after the Queensland Court of Appeal had allowed the appeal but varied the orders of the primary judge by deleting references to the ISR policy. The appellants contended that they enjoyed substantial success in the result and, as such, ought to recover at least half of their costs of the appeal and of the application from the respondents. In the alternative, the appellants submitted that each party should bear its own costs of the appeal and the application. The respondents, on the other hand, sought to uphold the costs order made on appeal or, in the alternative, contended that they should have 80 per cent of their costs of the appeal or that each party should bear its own costs of the appeal.

The central legal issue before the court was whether the general rule that costs follow the event should be departed from, given the unique circumstances of the case. The appellants argued that it was necessary to bring the appeal as the orders of the primary judge were, in a practical sense, finally determinative of their ultimate claim for relief. The respondents, however, assumed responsibility for the suitability of the questions posed for separate determination. Additionally, the appellants succeeded on grounds that were not advanced before the primary judge or on appeal. These factors led to the question of whether the general rule of costs following the event should be departed from.

The court granted the appellants leave to make submissions as to costs, acknowledging the unique circumstances of the case. The court found that the general rule of costs following the event should be departed from, as the appellants had succeeded on grounds that were not advanced before the primary judge or on appeal, and the respondents had assumed responsibility for the suitability of the questions posed for separate determination. Consequently, there was no order as to the costs of the appeal, allowing the parties to present their submissions on the matter.

Orders:
1. The appellants are granted leave to make submissions as to costs.
2. There be no order as to the costs of the appeal.