The Nominal Defendant v Roxwood Downs Pty Ltd (No 2)

The Nominal Defendant v Roxwood Downs Pty Ltd (No 2) is a case before the Supreme Court of New South Wales, which concerns the allocation of costs between multiple parties in the context of concurrent legal applications. The primary dispute involves the Nominal Defendant and Roxwood Downs Pty Ltd, with additional defendants also participating in the proceedings. The matter pertains to the costs incurred in relation to several applications, including a motion to set aside a default judgment and an application for leave to appeal.

The court was required to address the legal issues surrounding the usual order in relation to costs in cases involving multiple applications. The first defendant opposed the plaintiff's costs thrown away order, while the second defendant sought costs for the motion but accepted a costs thrown away order in favour of the plaintiff due to the leave granted. The primary question for the court was how to appropriately allocate the costs between the parties, considering the different stances taken by the defendants.

In reaching its decision, the court considered the established principles governing costs in litigation, particularly in cases involving multiple applications. The court emphasised that the usual order for costs should be departed from if it would be unjust to do so. Given that the first defendant opposed the costs thrown away order in favour of the plaintiff, and the second defendant accepted such an order as a result of the leave granted, the court found it appropriate to order that the plaintiff bear the costs of the defendants’ motion. The court also noted the second defendant's acceptance of the costs thrown away order, which influenced the final allocation of costs.

The court ordered that the plaintiff bear the costs of the defendants' motion, reflecting the differing positions of the defendants and the acceptance of the second defendant regarding the costs thrown away order. The final orders of the court were made in accordance with the principles of fairness and justice in the allocation of litigation costs.