Event and Time
Event Description
On 26 March 2021, the New South Wales Court of Appeal rendered a judgment in AMA Group Limited v ASSK Investments Pty Limited [2021] NSWCA 45, allowing an appeal brought by AMA Group Limited (AMA) and setting aside the orders made by the primary judge.
Application and Claims
- Appellant (AMA Group Limited): Sought costs to follow the event and argued that the respondent should pay the costs of the appeal on an ordinary basis.
- Respondent (ASSK Investments Pty Limited): Contended that failure to grant AMA full costs was justified because AMA changed its argument during the proceedings and suggested that no order for costs should be made at all.
Judicial Decisions
The court decided that ASSK Investments should pay 50% of AMA’s costs of the appeal, citing a departure from the usual rule that costs follow the event due to AMA changing its legal arguments between the first instance and the appeal.
Dispute Points and Legal Basis
Dispute Points
- AMA's Position:
- Argues costs must follow the event, emphasizing that its appeal submissions were consistent with written submissions at first instance. - Contends that the shift in argument at first instance was a response to the primary judge's proposition, implying that it shouldn’t suffer costs consequences for that.
- ASSK's Position:
- Contends that AMA's initial arguments led to its loss at first instance, particularly regarding the interpretation of the Board's discretion. - Suggests the notion of not paying costs should stem from AMA changing its position on appeal, thus justifying a departure from the usual rule.
- Key Points of Contention:
- The rationale behind the primary judge's ruling was influenced by AMA’s counsel altering their argument mid-way, which AMA later reverted in the appeal. - The historic rule regarding costs in England (cited by ASSK) that suggests winning by a new ground on appeal typically results in no costs awarded.