Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2)

In *Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2)*, the New South Wales Court of Appeal considered an application to vary a costs order made on appeal, and the appropriate allocation of costs for the proceedings below. The dispute arose from an appeal where the appellant's success was significantly reduced, and the respondents had succeeded on a dominant and severable issue.

The primary legal issues before the Court of Appeal were whether it had the power to vary its previous costs order on appeal, and if so, whether it should do so, given the respondents' partial success on appeal. The Court was also required to determine the appropriate apportionment of costs for the proceedings in the court below, considering the mixed success of the parties.

The Court of Appeal held that while it possessed the power to vary its costs orders, the respondents' application to do so was out of time under rule 36.16(3A) of the *Uniform Civil Procedure Rules 2005 (NSW)*. The Court found that it could not dispense with this rule, even if it had the power to vary the order, as the *Civil Procedure Act 2005 (NSW)*, s 14, did not permit such a variation irrespective of the power to do so. Consequently, the respondents' amended notice of motion was dismissed. Regarding the costs of the proceedings below, the Court ordered that the respondents pay 50% of the appellant's costs, reflecting the substantial reduction in the appellant's success on appeal and the respondents' success on a dominant issue. Specific orders were also made regarding the costs of certain interlocutory applications.