M.K. & J.A. Roche Pty. Ltd. & Ors. v Metro Edgley Pty. Ltd

M.K. & J.A. Roche Pty. Ltd. & Ors. (appellants) appealed to the Court of Appeal of New South Wales against a decision of Einstein J in the Equity Division. The dispute concerned the costs of an appeal that had been upheld and remitted on limited issues. The court was asked to determine whether the costs of the appeal should follow the event and whether a specific judge should conduct the further hearing.

The Court of Appeal considered the principles governing the award of costs on an appeal where the appeal was only partially successful and the matter was remitted for further determination. It also had to decide on the appropriate allocation of costs for additional submissions made during the appeal process and whether to direct which judge should preside over the subsequent hearing.

The Court of Appeal ordered that the further hearing in the Equity Division should be before Einstein J, unless a contrary order was made by a judge of that Division. Crucially, the costs of the additional submissions were to be treated as part of the costs of the appeal, indicating a holistic approach to the overall cost allocation of the proceedings.