Mills v Walsh (Costs)

In *Mills v Walsh (Costs)*, the Court of Appeal of New South Wales considered an application for costs following the discontinuance of an appeal. The dispute concerned the liability for costs when one appellant, by her conduct, had ratified the filing of an appeal in her name by her solicitors, despite later discontinuing her participation in the proceedings. The court was asked to determine whether it was fair and reasonable to depart from the usual order regarding costs in such circumstances.

The central legal issue before the court was whether the discontinuing appellant should be held jointly and severally liable for the costs incurred by the first respondent up to the date of discontinuance, notwithstanding the discontinuance itself. This required the court to consider the scope of its discretion in awarding costs and the principles that guide the determination of fairness and reasonableness when an appellant has, through their actions, affirmed the initiation of an appeal.

The court reasoned that the usual order for costs should generally apply unless there is a specific basis to displace it. In this instance, the conduct of the discontinuing appellant in ratifying the filing of the appeal meant that she was responsible for the costs incurred up to the point of discontinuance. The court found no compelling reason to depart from this principle. Consequently, the court varied the previous order, stipulating that the appellant and the second respondent were to pay the first respondent’s costs of the appeal up to and including 6 September 2022, and that the appellant alone was to pay the first respondent’s costs of the appeal thereafter.