Kable v State of New South Wales (No 2)

In *Kable v State of New South Wales (No 2)*, the Court of Appeal of New South Wales considered an application to vary a previous costs order and the appropriate disposition of the costs of the trial and appeal. The appellant had been successful on one of three causes of action, and the court was asked to determine whether the costs of the trial should be dealt with by the trial court on remitter or by the Court of Appeal. The appellant also sought to reopen a previous costs order made in respect of an adjournment during the appeal.

The primary legal issues before the court were whether the "event" for the purpose of costs following judgment was the overall outcome of the litigation or the success on individual causes of action, and how the costs associated with an adjournment, caused by inadequacies in the appellant's submissions, should be treated. Furthermore, the court had to consider the application of the Uniform Civil Procedure Rules 2005 (NSW) regarding the setting aside or variation of judgments and orders, particularly the time limits and notice requirements.

The Court of Appeal reasoned that the costs of the trial should be determined by the judge to whom the matter was remitted for the assessment of damages, as this would allow for a comprehensive consideration of all aspects of the litigation. Regarding the costs of the appeal, the court noted that the appellant was successful on one cause of action, but the inadequacies in its submissions had led to an adjournment, impacting the overall costs. The court ultimately decided to dispense with the formal notice requirements for the application to vary the costs order, given the circumstances, and vacated the previous order concerning the costs of the proceedings to date.

The court ordered that the question of the costs of the proceedings to date in the Common Law Division be dealt with by the judge to whom the matter was remitted for the assessment of damages. The respondent's subsequent notice of motion was otherwise dismissed, and no order was made as to the costs of the motion itself.