SSABR Pty Ltd v AMA Group Limited (No 2)

In SSABR Pty Ltd v AMA Group Limited (No 2), the Court of Appeal of New South Wales considered an application by the appellants to vary a costs order made by the Court. The appellants sought an order that the respondents pay their costs of the appeal proceedings on an ordinary basis up to 11 June 2024 and thereafter on an indemnity basis. The application to vary the costs order was made without a formal notice of motion, with the appellants relying on section 14 of the Civil Procedure Act 2005 (NSW) to dispense with this procedural requirement.

The primary legal issues before the Court were whether the appellants were entitled to their costs of the proceedings at first instance, and whether an order as to these costs was premature. Additionally, the Court had to determine the application to vary the costs order made on 23 July 2024, specifically concerning the basis on which costs should be awarded for the appeal.

The Court reasoned that the issue of whether the appellants were entitled to their costs of the proceedings at first instance should be remitted to the primary judge for determination, as it was not appropriate for the Court of Appeal to make that determination at that stage. Regarding the application to vary the costs order, the Court, exercising its power under section 14 of the Civil Procedure Act 2005 (NSW), dispensed with the usual requirement to file a notice of motion. However, the Court ultimately dismissed the application to vary the costs order.

The Court ordered that the issue of whether the appellants are entitled to their costs of the proceedings at first instance be remitted to the primary judge for determination. Furthermore, the Court dismissed the appellants' application to vary order (6) of the Court's orders of 23 July 2024.