A “Sanderson Order” is more direct and requires only the losing defendant(s) to pay the costs of the winning defendant, thereby completely excluding the plaintiff from the proceedings: Sanderson v Blyth Theatre Co  2 KB 533. The benefits of such a decision apply in particular in the case of an insolvent losing party. It also has the advantage of eliminating unnecessary administrative and procedural steps: Coombes v Roads and Traffic Authority (No. 2)  NSWCA 70 to . For a comparison of the two types of contracts, see Simmons v Rockdale City Council (No. 2)  NSWSC 1275. The accuracy of cost arrangements is important because costs must then be assessed by a cost estimater, unless the parties can agree on the costs to be paid without an assessment. The Court noted that the power to order costs to counsel should be exercised with due caution, as this could discourage lawyers from dealing with unpopular cases as there is a risk that personal costs will be imposed on them. This was particularly relevant in Coulthard, since the applicant`s lawyer acted pro bono. If a delay in completing the proceedings is likely, this may be the case if liability has been determined separately in accordance with rule 28.2.
In Herbert v. Tamworth City Council (No. 4) (2004) 60 NSWLR 476 at , the court ordered that costs be paid immediately if the determination of damages could be delayed by a decade. However, other discretionary considerations may arise if the successful party has been unsuccessful on substantive issues, in particular if those issues have occupied a substantial part of the proceedings, or if excessive costs (e.g. lead counsel for simple applications) have been incurred: see [8-0050]. Similarly, the principle that costs follow the event cannot be decisive in the absence of a final judgment or where a contractual agreement between the parties replaces the `event`. If the agreement contains an alternative dispute resolution or arbitration clause and a party initiates legal proceedings in breach of that clause, this may result not only in costs, but also in the suspension or termination of the proceedings: see the cases summarized in Haniotis v The Owners Corporation Strata Plan 64915 (No 2)  NSWDC 39. Party or party costs are, for the most part, unregulated and are calculated on a normal or compensatory basis. Concerns about high legal fees have led to the regulation of certain costs in the Legal Profession Act 2004 (now repealed but applicable if a client engaged a law firm before 1 July 2015), the Uniform Law of the Legal Profession (where a client first engaged a law firm on or after 1 July 2015), the Workers` Compensation and Management Act, 1998. and the Motor Vehicle Compensation Act 1999. There are also rules on fees payable to parties acting in a special capacity: see UCPR R 42.24 for guardians and R 42.25 for trustees and mortgagees. The responsibilities of liquidators and trustees when they become opposing parties, as opposed to being involved in the litigation in their official capacity, are explained in Lewis v Nortex Pty Ltd (in liq)  NSWSC 480 to  and –.
There are also special provisions for executors` fees, as explained below. It is for the losing party to provide a basis for departing from the usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2)  NSWSC 1111 to . Only in exceptional cases would a winning party be deprived of both the costs and expenses of the opponent: Arian v Nguyen (2001) 33 MVR 37. The fact that the proceedings involve an aspect of the public interest does not in itself justify a departure from the general rule that costs follow the event: McHugh J. in Oshlack/Richmond River Council, supra, at ; Re Kerry (No. (2)  NSWCA 194 to , ; cf. CSR Ltd v. Eddy (2005) 226 CLR 1. If there is a divergence of jurisprudence on a particular issue, this may be a factor, but in Rinehart v.
Welker (No. 3)  NSWCA 228, the importance of the subject matter provided no reason to deny costs to the prevailing party in a private dispute (at ). Even the general vicissitudes of a dispute do not justify departing from the principle, even if the judge acted in error: Jaycar Pty Ltd v Lombardo  NSWCA 284 at –. However, the court should carefully consider the facts: EKO Investments Pty Limited v Austruc Constructions Ltd  NSWSC 371 at –; Knight v. Clifton  Ch 700. The mere fact that a defendant vigorously defends a claim (and fails in some of those defences) does not entitle the plaintiff to the costs of a proceeding in which the plaintiff is unsuccessful or unsuccessful on the merits: AMC Caterers Pty Ltd v Stavropoulos  NSWCA 79 at –. In addition, as noted in [8-0040], the presumption may be replaced by a contractual agreement (but note the discretion of the court, as discussed in Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No. 2)  NSWCA 171). Judge warns against misuse of Article 29 of the 2010 Code of Civil Procedure The extent of the reasoning depends on the circumstances. Disputed claims for compensation costs are supported without exception, but the costs of a claim may be ordered without justification or (if justified) briefly.
Departing from the rule that costs follow the event should normally be accompanied by brief reasons, unless the parties agree that no reason is required. The Juvenile Court may not decide on the costs of the care proceedings unless justified by exceptional circumstances: Children and Young Persons (Care and Protection) Act 1998, section 88. There is a power to award compensation costs: Director-General of the Department of Social Services v. Ellis-Simmons, 2011 NSWChC 5. The requirement of “extraordinary circumstances” before costs orders can be made (Children and Young Persons (Care and Protection) Act 1988, section 88) does not apply to proceedings before the Supreme Court: Re Kerry (No. 2)  NSWCA 194. if the applicant`s success was due only to a late amendment: Beoco Ltd v. Alfa Laval Co Ltd  1 QB 137 (no costs). In Jaycar Pty Ltd v. Lombardo, the motion sought to vary an order in which the judge and not the parties had erroneously erred.
The court stated in  that the application to vary the order was not leniency. On appeal, if a trial judge`s exercise of discretion relates to errors of costs, the costs order may be set aside and the Court of Appeal may exercise that discretion again: McCusker v Rutter  NSWCA 318; State of NSW v Quirk  NSWCA 216 at pages – (factors justifying an appeal), or refer the matter back to the trial judge for a new decision. On appeal costs in general, see Dal Pont, chap. 20. Prior to the High Court`s decision in Bell Lawyers Pty Ltd v. Pentelow  HCA 29, the courts recognized that a lawyer acting in his own name was not in the same situation as a litigant personally (the Chorley exception) and could therefore claim court costs: Guss v Veenhuizen (No. 2) (1976) 136 CLR 47; Wang v Farkas (2014) 85 NSWLR 390 (with respect to a lawyer); Pentelow v. Bell Lawyers Pty Ltd  NSWCA 150; Ada Evans Chambers Pty Ltd v Santisi  NSWSC 538 at – (in relation to counsel).