Silversea Cruises Australia Pty Ltd v Abellanoza (No 2)

In *Silversea Cruises Australia Pty Ltd v Abellanoza (No 2)*, the New South Wales Court of Appeal considered an application for costs following an appeal where the appellant was partly successful. The dispute concerned the allocation of costs between the parties after an appeal that partially overturned an earlier decision.

The Court of Appeal was required to determine whether the issues on appeal were severable for the purpose of awarding costs, and whether the general rule that costs follow the event should be departed from. Specifically, the Court considered the impact of offers of compromise made by the appellant and the appellant's partial success in the appeal on the final costs order. The Court also had to consider the application of Uniform Civil Procedure Rules 2005 (NSW), r 42.34, in light of the significant disparity between the amount recovered by the respondent and the total amount payable to multiple defendants in the original proceedings.

The Court reasoned that while the appellant had achieved some success on appeal, the respondent had also been successful in defending a significant portion of the original judgment. The Court found that the issues were not entirely severable, and therefore, a departure from the general rule was warranted. The Court noted that the offers of compromise did not specify the costs consequences of non-acceptance and were framed as offers to discontinue the appeal if the entitlement to trial costs was foregone, which did not assist in determining the costs of the appeal itself. Ultimately, the Court determined that the appellant should bear the bulk of the respondent's costs, reflecting the partial success of the appeal.

The Court of Appeal ordered that the appellant pay 75% of the respondent's costs of the appeal and the costs of the costs application. Additionally, the Court set aside a previous order regarding the costs of the proceedings in the Equity Division and ordered that the plaintiff pay 75% of the second defendant's costs of those proceedings.