Smits v Roach [No 2]

In *Smits v Roach [No 2]*, the Court of Appeal of New South Wales considered an application for additional costs orders following an earlier appeal. The dispute concerned the allocation of costs, specifically in relation to grounds of appeal that were ultimately not pursued by the appellant.

The primary legal issue before the court was whether to make additional costs orders reflecting the fact that certain grounds of appeal, which had been the subject of significant preparation and argument, were not ultimately relied upon by the appellant. This raised questions about the principles governing the award of costs when a party abandons or fails to press certain arguments during appellate proceedings.

The court reasoned that where a party has prepared for and argued grounds of appeal, but then chooses not to rely on them, the costs associated with that preparation and argument should generally be borne by that party. The court noted that the purpose of costs orders is to compensate the successful party for the expense incurred in litigation. Allowing a party to abandon grounds without consequence would unfairly burden the respondent with costs that were not necessary for them to incur in defending the appeal. The court applied the principle that costs should follow the event, but with an allowance for the specific circumstances of the case, including the conduct of the parties and the efficient use of court resources.

The court made additional orders for costs, reflecting the fact that the appellant had not pursued certain grounds of appeal. These orders were designed to ensure that the respondent was not unfairly burdened with costs that were not occasioned by the grounds upon which the appeal was ultimately decided.