Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2)

In *Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2)*, the Court of Appeal of New South Wales considered an application for costs following an appeal where the respondent had submitted an appearance save as to costs but was not represented at the hearing. The appellant was successful in the appeal.

The primary legal issue before the Court of Appeal was whether the respondent's notice of appearance, which reserved its position solely in relation to the costs of the appellate proceedings, entitled it to argue the question of costs at first instance. The court also considered the effect of a submitting appearance and the general principles governing the determination of costs.

The Court of Appeal reasoned that a reservation of costs in a notice of appearance in appellate proceedings is confined to the costs of that specific appeal. It held that such a reservation does not operate to reopen or permit argument on the costs of the proceedings at first instance. The court emphasised that the question of costs is determined in the overall context of the proceedings, and a submitting appearance does not create a general rule or expectation that a party will be permitted to argue costs at an earlier stage.

The Court of Appeal ordered that the respondent pay the appellant's costs of the proceedings in the Court of Appeal and granted the respondent a certificate under the *Suitors Fund Act 1951* (NSW), if qualified.