SAS Trustee Corporation v Arthur Cox (No 2)

The SAS Trustee Corporation (the appellant) appealed a decision of the Supreme Court of New South Wales concerning the costs of an earlier appeal and a notice of motion. Arthur Cox (the respondent) was the party against whom the costs orders were made. The dispute revolved around the appropriate allocation of costs following the determination of these interlocutory matters. The appeal was heard by McColl and Campbell JJA and Sackville AJA of the Court of Appeal of the Supreme Court of New South Wales.

The primary legal issue before the Court of Appeal was whether the costs order made by the primary judge in relation to the notice of motion filed on 23 December 2011 was correct, and whether the costs order for the appeal itself should be varied. Specifically, the court considered the application of the *Suitor's Fund Act 1951* (NSW) in relation to the costs of the appeal.

The Court of Appeal varied the original costs order. It ordered that the respondent pay the costs of the appeal, but with a provision for a certificate under the *Suitor's Fund Act 1951* if the respondent otherwise qualified. This suggests the court considered the respondent's circumstances in relation to the Act. The court also ordered that the respondent pay the costs of the notice of motion filed on 23 December 2011. The note appended to the orders highlights the importance of the Uniform Civil Procedure Rules 2005, particularly regarding the entry of judgments and orders and the time limits for setting aside or varying them.