Hawcroft General Trading Co Pty Ltd v Hawcroft (No 2)

The dispute before the Court of Appeal of New South Wales involved Hawcroft General Trading Co Pty Ltd (the appellant) and Jennifer Hawcroft (the respondent). The appeal concerned the costs awarded at first instance, with the appellant seeking to depart from the usual order that the unsuccessful party pays the costs of the successful party.

The primary legal issue before the Court of Appeal was whether the appellant should be ordered to pay the respondent's costs at first instance, despite the appellant having succeeded on a point at the appeal hearing that was inconsistent with its case at trial. A further issue was the appropriate order for the costs of the appeal itself.

The Court reasoned that the appellant's success on the new point at the appeal hearing was only possible because the point was raised at that late stage. The Court noted that the entire appellate process was necessitated by the appellant's failure to raise this point earlier in the proceedings at first instance. Consequently, the Court determined that the usual order as to costs at first instance should be maintained, and the appellant should pay the respondent's costs at first instance. Regarding the appeal costs, the Court found that given the circumstances, it was appropriate for each party to bear their own costs of the appeal.

Accordingly, the Court ordered that the defendant, Hawcroft General Trading Co Pty Ltd, pay the costs of the plaintiff, Jennifer Hawcroft, at first instance. There was no order as to the costs of the appeal, meaning each party was to bear their own costs of the appeal.