Hutchison Construction Services Pty Ltd v Fogg (No 2)

The dispute in *Hutchison Construction Services Pty Ltd v Fogg (No 2)* concerned the costs of an appeal and cross-appeal. The parties involved were Hutchison Construction Services Pty Ltd and Mr Fogg, along with Les Quatre Musketeers Pty Ltd. The Court of Appeal of New South Wales was required to determine the appropriate orders for costs, particularly in light of the limited success achieved by the cross-appellant on its cross-appeal.

The primary legal issue before the court was how to allocate the costs of the appeal and cross-appeal, given that while the cross-appellant (Mr Fogg) ultimately obtained a larger judgment, the majority of the grounds raised in his cross-appeal had failed. The court had to consider whether the general rule that costs follow the event should apply, or if a different approach was warranted due to the mixed success.

The court's reasoning, as reflected in the orders, indicated that while Mr Fogg was successful in the main appeal, resulting in an order for Hutchison Construction Services Pty Ltd to pay his costs and those of Les Quatre Musketeers Pty Ltd for the appeal, the outcome of the cross-appeal was different. Despite Mr Fogg securing a greater judgment sum, the court determined that no order as to costs should be made in respect of the cross-appeal, meaning each party was to bear their own costs for that part of the proceedings. This suggests the court considered the limited success on the cross-appeal to be a significant factor in deviating from the usual cost order. The court also made an order for Mr Fogg to pay Hutchison Construction Services Pty Ltd's costs concerning the application for costs of the appeal and cross-appeal.