Sheahan v Londish

The applicants, Sheahan and others, sought leave to appeal to the Court of Appeal of New South Wales against orders made by the primary judge concerning costs. The substantive dispute between the parties had been resolved by events occurring after the first instance decision, meaning the appeal effectively concerned only the allocation of costs. Prior to the hearing of the application for leave to appeal, the applicants made an offer that each party bear its own costs. This offer was not accepted by the respondents.

The central legal issue before the Court of Appeal was the appropriate order for costs, given that the appeal was successful and the substantive dispute had been resolved. The court was required to consider the impact of the applicants' offer to settle costs on a "each side to bear their own costs" basis, and whether this offer, in light of the subsequent success of the appeal, warranted a departure from the usual order that costs follow the event.

The Court of Appeal reasoned that the applicants' offer to bear their own costs was a significant factor. Although the appeal was successful, the offer demonstrated a willingness to compromise on the costs issue. In light of the offer not being accepted and the subsequent success of the appeal, the court determined that it was appropriate to make an order reflecting the applicants' offer.

The Court of Appeal ordered that each party bear its own costs of the application for leave to appeal and the appeal.