Sze Tu v Lowe (No 2)

In *Sze Tu v Lowe (No 2)*, the New South Wales Court of Appeal considered appeals and cross-appeals concerning costs orders made at trial. The dispute involved multiple plaintiffs and defendants, with varying degrees of success for each party across different claims and at different stages of the proceedings. The primary focus of the Court of Appeal's decision was the allocation of costs, both for the appeals themselves and for the proceedings at first instance.

The Court of Appeal was required to determine whether to depart from the general rule that costs follow the event, particularly given the multiplicity of issues and parties involved. Specifically, the court had to consider whether the appellants should be deprived of part of their costs of the appeals, and whether any basis existed for a *Bullock* order in relation to the appeals or the trial proceedings, where multiple respondents or defendants were involved. Furthermore, the court had to assess the appropriate costs orders for the trial, considering that the plaintiffs were ultimately successful in some claims against one defendant, while other defendants were successful on appeal in setting aside relief awarded against them at trial.

The Court of Appeal reasoned that while the general rule of costs following the event applied, the complex nature of the litigation, with numerous issues and parties, necessitated a departure from a simple application of that rule. The court found that the appellants on appeal were not successful on all issues, justifying a reduction in their recoverable costs. Similarly, at trial, the plaintiffs' partial success meant they were not entitled to recover all their costs from the defendant against whom they had some success. The court also considered the joinder of various defendants and whether any unsuccessful defendant should bear responsibility for the costs of other, successfully joined defendants, ultimately finding no basis for such an order.

The Court of Appeal ordered that the first and second respondents pay 85% of the respective appellant’s costs of the appeals. For the trial proceedings, the court substituted new orders regarding costs. The first and second plaintiffs were ordered to pay the costs of the second, third, fifth, and sixth defendants. The first defendant (the Estate) was ordered to pay 35% of the plaintiffs’ costs, but this was limited to the extent that such costs could be satisfied from the late Kut Sze Tu’s 20% share of the net proceeds of sale of the partnership assets held by the Estate. The court also clarified that these costs orders were payable immediately, subject to assessment, and not deferred until the completion of an inquiry.