Wardle v Agricultural and Rural Finance Pty Ltd (No 2)

The case of *Wardle v Agricultural and Rural Finance Pty Ltd (No 2)* concerned an appeal and applications for leave to appeal and cross-appeal before the Court of Appeal of New South Wales. The dispute involved multiple parties, including Agricultural and Rural Finance Pty Ltd (the Respondent) and various individuals who were defendants in the original proceedings and sought to be added as Appellants. The core of the dispute revolved around costs orders made at first instance, particularly concerning the striking out of certain pleadings and the dismissal of cross-claims.

The Court of Appeal was required to determine several legal issues. Firstly, it had to consider whether it possessed the jurisdiction to make costs orders that might incidentally benefit non-parties to the appeal, specifically in relation to the principle and section 98 of the *Civil Procedure Act*. Secondly, the Court needed to address the appropriate apportionment of costs where the ultimately successful parties had not succeeded on all grounds of appeal. Finally, the Court had to decide on the appropriate form of costs orders, including the appropriateness of "per defendant" orders, in light of the varying degrees of success among the appellants and the nature of the proceedings.

The Court reasoned that it did have jurisdiction to make costs orders that incidentally benefited non-parties when appropriate, rejecting the submission that such orders were beyond its power. In relation to the costs of the appeal, the Court found that a simple mechanical process of calculating costs based on time spent on particular issues was inappropriate. Instead, it balanced the issues on which the appellants succeeded and failed, determining that most appellants should receive a proportion of their costs. The Court also considered the application of Uniform Civil Procedure Rule 42.7, concluding that the appeal, unlike in *Metropolitan Petar*, was not an interlocutory proceeding and therefore costs were payable upon conclusion.

The Court made extensive orders, including granting leave to appeal and adding several individuals as Appellants. It set aside parts of the orders made by Einstein J at first instance, particularly those striking out certain defences and making specific costs orders. In lieu of the struck-out costs orders, the Court made detailed "per defendant" costs orders, reflecting the varying success of the parties and the need to account for costs already recovered by settlement. The Court also set aside the order dismissing the appellants' cross-claims and made new orders regarding the costs of those cross-claims. The question of how the costs of the first trial should be borne was reserved for the judge hearing the remitted proceedings, as some issues litigated at the first trial would not be re-litigated.