Mandeville v Better Lending Pty Ltd (No 2)

The appeal and cross-appeal concerned the appropriate costs orders following a judgment in Action 83 of 2016. The appellant, Ms. Mandeville, sought an order for 80 per cent of her costs of the appeal and cross-appeal on a party/party basis, 90 per cent of her costs in the original action, and the release of $20,000 held in the Suitor's Fund to her. The respondent, Better Lending Pty Ltd, had indicated an intention to seek special leave to appeal to the High Court.

The Court was required to determine whether to grant a stay of the costs orders pending any potential special leave application, how to characterise the parties' respective successes and failures for the purpose of allocating costs, and whether to depart from the usual principle of awarding costs on a party/party basis in the original action.

The Court reasoned that no stay of the costs orders was warranted as the respondent had failed to provide evidence of its intended application for special leave to appeal, nor had it demonstrated that its rights would be rendered nugatory without a stay. The Court held that it was best placed to assess the relative success and failure of the parties on appeal, and that a "full accounting and reconciliation" was not necessary for this purpose. While acknowledging that a considerable portion of the appellant's appeal was unnecessary or unsuccessful, the Court found that the overall weighting should favour the appellant. Regarding Action 83 of 2016, the Court found no basis to depart from the ordinary principle that costs should be awarded on a party/party basis.

Accordingly, the Court ordered that the appellant be awarded 80 per cent of her costs of the appeal and cross-appeal on a party/party basis, 90 per cent of her costs in Action 83 of 2016, and that the sum of $20,000 held in the Suitor's Fund be paid out of Court to the appellant.