Thumbiran v Silver Chef Rentals Pty Ltd; Thumbiran v Silver Chef Rentals Pty Ltd (No 2)

In *Thumbiran v Silver Chef Rentals Pty Ltd* (No 2), the unsuccessful respondent sought an order for costs in its favour or, alternatively, no order as to costs, in proceedings before the Court of Appeal of New South Wales. The appellant had been successful in their appeal, but the court did not determine all points raised by the appellant, and some points were not raised at first instance.

The primary legal issue before the court was whether there was a basis to displace the usual order as to costs, which generally follows the event, pursuant to rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW). This involved considering the conduct of the respondent and whether it had caused the entire litigation.

The court reasoned that while not all points raised by the successful appellant were determined, and some were not pursued at first instance, the respondent's conduct was the cause of the entire litigation. This overarching factor weighed heavily in favour of departing from the usual costs order. However, the court ultimately found that there was no sufficient basis to displace the usual order as to costs, implying that the respondent's conduct, while causative of the litigation, did not warrant a departure from the general rule that costs follow the event.

In each of the appeals, 2021/329654 and 2021/307674, the notice of motion filed by the respondent on 25 August 2022 was dismissed with costs.