Australia, Aug. 21 -- New South Wales Land and Environment Court issued text of the following judgement on July 21:

1. On 13 June 2025, I delivered the primary judgment in these proceedings: Davis Stack Capital Pty Ltd v Raj & Jai (Mudgee) Pty Ltd [2025] NSWSC 599 (Judgment). These reasons assume familiarity with the Judgment.

2. I directed the parties to provide short minutes of order containing the orders they proposed in relation to costs and any necessary explanation for those orders.

3. The plaintiffs submit that the defendants should pay 80% of their costs not already subject to an order of this Court.

4. The defendants accept that they should be ordered to pay the plaintiffs' costs of the proceedings, including all previous costs orders made in the plaintiffs' favour, save for the costs incurred in relation to an issue that they contend is "dominant" or "separable". The defendants' proposed costs orders are:

1) The plaintiffs pay the defendants' costs of the plaintiffs' application for orders for specific performance of the USPA against the second defendant (being the relief sought against the second defendant in prayers 3 and 4 of the Summons), including the defendants' costs of the hearing on 26 and 27 May 2025, as agreed or assessed.

2) Subject to (1) above, the defendants otherwise pay the plaintiffs' costs of the proceedings, as agreed or assessed.

5. For the reasons that follow, I will order that the defendants pay 75% of the plaintiffs' costs.

Legal Principles

6. The general rule that "the successful party is generally entitled to his or her costs by way of indemnity" is well-known and often guides the exercise of the Court's discretion as to costs: Northern Territory v Sangare (2019) 265 CLR 164 at 173 (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ). Where, however, a party succeeds overall in litigation, but fails on a dominant or separable issue, different considerations govern the Court's discretion. The relevant principles, in this regard, were collected and articulated by the Court of Appeal in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] (Beazley, Ipp and Basten JJA) in the following terms:

Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).

In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Ltd (No 2) [2007] NSWCA 306 at [24]. ...

...

Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed).

A separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].

Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272.

(See also Oikos Constructions Pty Ltd v Ostin (No 2) [2021] NSWCA 98 at [10]-[16], [28] (White JA, Basten and Macfarlan JJA agreeing); Access Training Group Ltd v Jane [2024] NSWCA 204 at [183]-[192] (Ward P, Payne JA agreeing) and [219]-[220] (Basten AJA)).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1981c4d05c7297642515ee62)

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