Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd (No 2)

Penrith Whitewater Stadium Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning the costs of a trial. Lesvos Pty Ltd (the respondent) was the successful party at trial. The dispute concerned the interpretation and enforceability of a contract for the sale of land.

The primary legal issues before the Court of Appeal were whether the respondents should be awarded indemnity costs of the trial, and how the costs of the appeal should be apportioned, particularly in light of certain specific arguments raised by the parties. The court also considered applications to vary the proposed costs orders.

The Court of Appeal determined that the respondents were not entitled to indemnity costs of the trial. The court reasoned that while the appellant's conduct in the litigation might have been criticised, it did not reach the threshold for an award of indemnity costs. Regarding the costs of the appeal, the court ordered that the respondents pay the appellant's costs, save for those incurred in preparing a specific document ("the orange book") and related arguments, and in preparing for oral argument on appeal concerning issues unrelated to specific statutory provisions and a notice of contention. No order was made for the costs excluded from the general order, nor for the costs of the applications to vary the proposed costs orders. The respondents were granted a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.