Virgtel Ltd v Zabusky (No 2)

Virgtel Ltd filed proceedings against Zabusky in the Supreme Court of New South Wales. The nature of the dispute related to a partial success in the proceedings, with certain questions being conceded and others disputed. The matter was subsequently dismissed for want of prosecution, and the Court set down for hearing certain questions. The respondents succeeded only on the questions that were conceded by the applicants, while the applicants succeeded on the remaining disputed questions. The issue before the Court was whether the respondents should pay the applicants’ costs of the questions that were set down on 12 April 2021 and heard on 24 June 2021.

The Court noted that it was a general rule that costs follow the event, and that a party who is successful on some but not all issues is entitled to costs of those issues on which they are successful. The Court also noted that the respondents had not challenged the applicants' entitlement to costs and that the applicants had succeeded on the disputed questions. The Court held that the respondents should pay the applicants' costs of the questions that were set down on 12 April 2021 and heard on 24 June 2021, as the applicants were successful on those questions.

The Court ordered that the respondents pay the applicants' costs of the questions set down on 12 April 2021 and heard on 24 June 2021. The Court noted that the amount of costs should be assessed by the Registrar if the parties were unable to agree on the quantum of costs. The Court held that the respondents were liable for the applicants' costs of the disputed questions, as they were successful on those issues. The Court's decision provides guidance on the allocation of costs in cases where a party is successful on some but not all issues.