Keramianakis v Regional Publishers Pty Ltd [NO. 2]

The appeal concerned an application for costs brought by Regional Publishers Pty Ltd (the respondent) against Keramianakis (the appellant). The appeal itself had been found to be incompetent, meaning it could not proceed. Despite the appeal's lack of competency, the respondent sought to recover its costs.

The central legal issue before the Court of Appeal of New South Wales was whether the respondent should be awarded costs in circumstances where the appeal was incompetent, but the parties had, in the Court's estimation, equal prospects of success on the merits of the appeal had it been competent. This required the Court to consider the application of the Uniform Civil Procedure Rules 2005 (NSW), specifically rules 42.1 and 51.41, in determining the appropriate costs order.

The Court reasoned that while the general rule is that costs follow the event, this principle is not absolute, particularly in the context of incompetent appeals. The Court noted that the respondent had not objected to the competency of the appeal at an earlier stage. Furthermore, the Court assessed that the merits of the appeal were evenly balanced, meaning neither party had a clearly superior argument. Applying these considerations, the Court concluded that it was not appropriate to depart from the usual rule that costs are not awarded when an appeal is dismissed for want of competency, especially when the merits were evenly balanced.

Consequently, the applications for costs made by both parties were dismissed.