Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (No 2)

The appeal concerned the costs orders made at first instance following a dispute between Illawarra Hotel Company Pty Ltd and Walton Construction Pty Ltd. The primary dispute involved two money judgments given at first instance, which were ordered to be set off against each other. The court was required to determine how the operation of s 100(4) of the Civil Procedure Act applied in these circumstances, specifically the meaning of "the amount for which judgment is given". Additionally, the court considered whether the outcome on appeal warranted a variation of the costs order at first instance based on Calderbank principles, and whether a claim for interest on costs at first instance was supportable.

The Court of Appeal, comprising Meagher, Barrett and Ward JJA, allowed the appeal in part. The court varied the costs order made by Einstein J, excluding certain findings from the original order. It also set aside the judgment orders made by McDougall J and substituted new orders. Walton was awarded judgment in the amount of $454,080.13, exclusive of GST, and Illawarra was awarded judgment in the amount of $177,122.59, also exclusive of GST. The court ordered that the appellant pay the respondent's costs of the appeal and granted liberty to apply in respect of moneys held in a controlled moneys account. The claim for interest on costs at first instance was deemed unsupportable as it did not arise in consequence of the decision on appeal.