Hillam v Iacullo

In *Hillam v Iacullo*, the Court of Appeal of New South Wales considered an application by the plaintiffs to vary a costs order made at first instance. The plaintiffs had initially succeeded in a summary judgment application, recovering part of the amount they sought from the defendant. However, at trial, the plaintiffs ultimately failed on the only issues that remained to be determined.

The central legal issue before the Court of Appeal was whether the plaintiffs were entitled to a favourable costs order at first instance, despite their ultimate failure at trial on the substantive issues. The plaintiffs argued that they were compelled to commence proceedings to recover their lent funds and that the issues upon which they failed were not the primary focus of the litigation.

The Court of Appeal reasoned that the general rule that costs follow the event applied. While the plaintiffs had succeeded on their summary judgment application and obtained a costs order in their favour for that stage, their subsequent failure on the remaining issues at trial meant that the overall outcome of the litigation was against them. The court found no occasion to depart from the general rule, particularly as the issues upon which the plaintiffs failed were the only matters left for determination at trial.

Consequently, the Court of Appeal dismissed the plaintiffs' notice of motion seeking to vary the costs order, ordering that the plaintiffs pay the defendant's costs of the motion.