Nichols v NFS Agribusiness Pty Ltd

The appeal concerned an application for leave to appeal a costs order made by a primary judge in the NSW Court of Appeal. The dispute arose from proceedings that had been resolved without a hearing on the merits, and the primary judge had made an order for costs in favour of the respondent. The applicants sought to overturn this costs order.

The central legal issue before the Court of Appeal was whether the primary judge had erred in awarding costs to the respondent when the substantive proceedings had not been determined on their merits. Specifically, the court had to consider whether it was "clear that the respondent would have succeeded in any event" and whether the respondent had acted reasonably while the applicants had acted unreasonably, as per the principles established in *Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin*.

The Court of Appeal found that the primary judge had erred in making the costs order. Applying the principles from *ex parte Lai Qin*, the court determined that it was not clear that the respondent would have succeeded in the substantive proceedings. Furthermore, the court considered that the conduct of the parties did not warrant the costs order made. Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the primary judge's costs order.

The final orders of the Court of Appeal were that there be no order as to the costs of the proceedings below, meaning each party was to bear their own costs. The respondent was ordered to pay the appellants’ costs of the appeal.