The Nominal Defendant v Ross (No 2)

The appeal concerned the costs of proceedings between The Nominal Defendant (appellant) and Ross (respondent) in the New South Wales Court of Appeal. The dispute revolved around the appropriate allocation of costs following a mixed outcome in the appeal.

The primary legal issue before the Court of Appeal was whether to depart from the general rule that costs follow the event, given the partial success of both parties. The Court was required to determine how to approach the assessment of costs in circumstances where the appeal had resulted in a mixed outcome.

The Court reasoned that a global view of the outcome of the proceedings was appropriate when considering costs in cases with a mixed result. Applying this principle, the Court ordered that the respondent pay 30 percent of the appellant's costs of the appeal. Additionally, the respondent was granted a certificate under s 6 of the Suitors' Fund Act 1951, provided they otherwise qualified.