Partial Success on Appeal, Fresh Trial Ordered: How Should Costs and the Ambit of the Retrial Be Controlled Under the Uniform Civil Procedure Rules 2005 and the Civil Procedure Act 2005?

Based on the authentic Australian judicial case Appellant v Respondent (No 2) [2025] NSWCA 218, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Court of Appeal, Supreme Court of New South Wales

Presiding Judge: The Court, constituted by Stern JA, Ball JA, and Griffiths AJA

Cause of Action: Costs and consequential orders after a partially successful appeal, including orders governing the scope and conduct of a limited retrial

Judgment Date: 29 September 2025

Core Keywords:

Keyword 1: Authentic Judgment Case

Keyword 2: Costs discretion

Keyword 3: Costs follow the event

Keyword 4: Partial success on appeal

Keyword 5: Retrial and limited fresh trial

Keyword 6: Ambit of retrial and reopening evidence

Background

This proceeding did not decide the underlying commercial dispute itself. Instead, it dealt with the aftermath of an appeal that was allowed in part and resulted in a limited retrial. The parties had litigated at first instance and then appealed. The appeal produced mixed results: each party succeeded on some issues and failed on others. Because a retrial was ordered on specific remitted issues, the Court was required to determine how the costs of the appeal and the prior trial should be dealt with now, and what directions should be made to ensure the retrial remained confined to what the appellate orders required.

Core Disputes and Claims

The Court was required to determine three tightly connected questions.

First, what costs orders should follow where an appellant achieves an order for a retrial but fails on several substantial issues: should the usual approach that costs follow the event apply, or should some other order be made under the Uniform Civil Procedure Rules 2005 and the Civil Procedure Act 2005?

Second, what should happen to the costs of the first instance hearing, given that the final practical outcome would only be known after the retrial?

Third, what consequential orders should be made to manage the conduct of the retrial, including whether the parties should be bound to their existing pleadings and evidence, and whether any party should have leave to reopen and adduce further oral or expert evidence on the remitted issues.

Applicant and Respondent positions were advanced as follows.

The Appellant sought an order that the Respondent pay the Appellant’s costs of the appeal and a defined share of the costs below, and also sought security for costs for the retrial and a stay unless security were provided. The Appellant also sought detailed management orders fixing the basis on which the retrial would proceed.

The Respondent sought that the costs of the appeal and trial be dealt with as costs in the cause, or alternatively that there be no order as to the costs of the appeal. The Respondent opposed security for costs at this stage, and sought orders constraining the retrial and defining how evidence could be reopened.

Chapter 2: Origin of the Case

The litigation began as a commercial dispute arising out of a contractual relationship governed by a master franchising agreement. The relationship had a renewal framework controlled by contractual clauses, including a clause that placed limits on renewal rights and a clause addressing the form of renewal terms. As the commercial relationship matured, competing interests emerged: one party sought to renew on terms consistent with its understanding of the agreement; the other contended that renewal had been impermissibly constrained or mishandled, and that associated conduct crossed legal lines.

Financial interweaving in daily commercial life took ordinary forms: continuing trading arrangements, reliance on contractual renewal mechanisms, communications about renewal terms, and expert accounting or valuation evidence bearing on damages if renewal rights were lost or impaired. Over time, conflict grew from transactional friction into litigation posture, with each side relying on contractual construction, alleged breach, alleged repudiation, and statutory norms regulating commercial behaviour.

The decisive moments that precipitated litigation were not theatrical single events but a progression: disagreement about how renewal clauses operated; disagreement about what the proposing party could require in renewal terms; dispute about whether conduct in the commercial relationship was unconscionable under the Australian Consumer Law; and dispute about whether actions associated with a rival business venture amounted to repudiation of the agreement. These issues reached a first instance hearing with pleadings, affidavit evidence, documentary tender, and expert reports. The first instance outcome then triggered an appeal, and the appeal judgment identified errors and unresolved issues requiring a limited retrial.

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

The Appellant’s case in the appellate aftermath centred on the consequences of partial appellate success and how that should translate into costs and retrial management. The Appellant contended that the Respondent should pay the Appellant’s costs of the appeal and a defined portion of the costs below, on the footing that the Appellant obtained an order setting aside the orders below and secured a retrial on remitted matters.

The Appellant also sought security for costs for the retrial in a substantial sum and sought a stay unless security were provided, asserting a protective approach to future exposure on costs.

On the conduct of the retrial, the Appellant contended that the retrial should proceed using the existing litigation record: pleadings, affidavit evidence, documentary tender, rulings on evidence, oral evidence and cross-examinations as recorded in transcript, and concessions or admissions made. The Appellant sought leave to cross-examine witnesses strictly on the remitted matters.

The evidence relied upon for these applications was procedural in nature: the earlier appellate orders and reasons, and the catalogue of issues on which each party succeeded or failed.

Respondent’s Main Evidence and Arguments

The Respondent’s position emphasised the mixed nature of success on appeal and the reality that the substantive practical result of the overall proceeding remained undetermined until the remitted issues were tried. The Respondent contended that the costs of the appeal and trial should be treated as costs in the cause, or at least that there be no order as to the costs of the appeal.

The Respondent opposed security for costs at this stage on the basis that the Appellant had not filed the necessary motion and supporting evidence for such relief.

As to retrial conduct, the Respondent sought orders under the UCPR and the Civil Procedure Act to ensure the retrial was confined to what the appellate order required, including a structure allowing limited reopening of evidence in chief and controlled further cross-examination on the remitted issues.

Core Dispute Points

1. Costs of appeal: whether to apply the general rule that costs follow the event, or to depart because success and failure were balanced on substantial issues.

2. Costs of the first instance hearing: whether to decide now or leave it to the retrial judge as costs in the cause.

3. Security for costs: whether the appellate court should order security for the retrial in the absence of a motion and supporting evidence.

4. Scope and conduct of retrial: whether to bind parties to their existing pleadings and forensic choices, and what evidence could be reopened to ensure the retrial addressed only the remitted issues.

Chapter 4: Statements in Affidavits

The procedural record indicates that the first instance proceedings were conducted using pleadings and affidavit evidence, supplemented by documentary tender and oral cross-examination recorded in transcript. In Australian civil litigation, affidavits are not merely narrative statements: they are evidentiary vehicles that must be crafted to survive objections, fit admissibility rules, and align with pleaded issues.

In this dispute, the appellate court’s concern was not to re-litigate every factual dispute via fresh affidavits. The Court’s approach to the retrial emphasised that the parties should be bound by their existing pleadings and affidavit evidence, and that any additional evidence should be carefully controlled. That posture illustrates a strategic judicial preference: where a retrial is limited, the integrity of the existing record restrains tactical re-fashioning of cases through fresh affidavit rounds.

Strategic intent behind procedural directions about affidavits is therefore apparent. By limiting the retrial to the existing evidentiary architecture, the Court reduced the risk of the remitted hearing becoming a de facto re-run of the entire case. This served the overriding purpose of civil procedure: the just, quick, and cheap resolution of the real issues in dispute, using proportionate procedures.

Chapter 5: Court Orders

Prior to the finalisation of the appellate proceedings on costs and consequential orders, the Court directed the parties to attempt agreement about costs and other necessary orders, and to file written submissions if agreement could not be reached. Final orders were then made on the papers without a further oral hearing.

The consequential orders ultimately addressed:

1. Costs of the appeal.

2. Costs of the first instance proceedings.

3. Leave to reopen evidence on the remitted issues, including further oral evidence in chief from identified lay witnesses on the contractual breach issue, and further expert evidence on the damages quantification issue.

4. A general direction that the retrial proceed on the basis of the existing litigation record, subject to the limited reopening permissions, and subject to any contrary or different order by the retrial judge.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The costs and retrial management issues were determined on the papers, so there was no courtroom theatre in the conventional sense. The evidentiary and forensic confrontation occurred through the written positions each party advanced about the consequences of partial success and the permissible scope of a retrial.

Process Reconstruction: Live Restoration

The decisive forensic struggle was about framing the meaning of success and failure. The Appellant relied on the fact of a retrial order and the setting aside of earlier orders. The Respondent relied on the Court’s assessment that the appeal was not a straightforward win, because the Appellant failed on multiple substantial issues, and some issues that consumed resources were not peripheral.

The Court reconstructed the appeal issues as seven key issues. It then matched the outcome of those issues to the competing costs proposals. That structured catalogue was the Court’s method of converting broad submissions into a disciplined costs analysis.

Core Evidence Confrontation

The most decisive materials were:

1. The earlier substantive appeal reasons identifying the seven key issues.

2. The parties’ written submissions proposing different cost outcomes.

3. The statutory and rules framework governing costs discretion and retrial powers, particularly Civil Procedure Act 2005 (NSW) s 98, Uniform Civil Procedure Rules 2005 r 42.1, Uniform Civil Procedure Rules 2005 r 51.53, and Civil Procedure Act 2005 (NSW) s 89.

Judicial Reasoning

The Court held that costs are discretionary and ordinarily follow the event, but the event may not be clear where success is divided across substantial issues. The Court also held that security for costs for the retrial should not be considered without an appropriate motion and evidentiary foundation, and that the retrial should be controlled so it remained limited to the remitted issues while preserving fairness.

The Court held that the usual rule should not be applied because, although the appeal was allowed in part, the Appellant failed on several key issues.

This statement was determinative because it encapsulates the Court’s central evaluative step: the appeal outcome was not a single event in the ordinary sense, but a composite of substantial wins and losses. That justified departing from a default costs order.

The Court held that it was inappropriate to consider security for costs because no notice of motion or supporting evidence had been filed.

This statement was determinative because it anchors a procedural discipline: a substantial protective order affecting the retrial requires proper procedural invocation and evidence, not mere assertion.

Chapter 7: Final Judgment of the Court

The Court made the following orders.

1. Each party bear its own costs of the appeal.

2. Costs of the proceedings before the primary judge be costs in the cause.

3. Pursuant to Uniform Civil Procedure Rules 2005 r 51.53 and or Civil Procedure Act 2005 (NSW) s 89, and subject to any contrary or different orders by the retrial judge, on the retrial leave is granted:

3.1. Leave to the defendant below to reopen its case to lead further oral evidence in chief from nominated lay witnesses on the issue whether the defendant breached the relevant contractual clause, and if necessary leave to the plaintiff to recall any of those witnesses for further cross-examination on that issue.

3.2. Leave to the parties to lead additional evidence in chief from their respective experts in respect of the damages quantification issue, and if necessary leave to recall the other party’s expert for further cross-examination.

1. Pursuant to Uniform Civil Procedure Rules 2005 r 51.53 and or Civil Procedure Act 2005 (NSW) s 89, and subject to any contrary or different orders by the retrial judge, the retrial proceedings are otherwise to be conducted on the basis of the respective parties’ cases as already recorded, including pleadings, affidavit evidence, documentary tender, rulings on evidence, oral evidence and cross-examinations as recorded in transcript, and concessions or admissions made.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This case has jurisprudential value not because it created a new doctrine of costs, but because it provides a disciplined template for a common and difficult problem: how to translate a mixed appellate outcome into fair costs orders while preserving procedural economy in a limited retrial.

The Court’s approach highlights four interlocking principles that recur in Australian civil practice.

First, the costs discretion remains broad but is exercised by reference to structured reasoning rather than instinct.

Second, the concept of the event in costs analysis is not confined to a binary win or lose, and substantial issue outcomes matter where success is divided.

Third, consequential orders after an appeal are not administrative tidying: they shape the fairness and efficiency of the fresh hearing.

Fourth, applications that would materially burden the opposing party or impede progress, such as security for costs and stays, require proper procedural steps and evidentiary foundations.

This is a case about litigation hygiene: controlling scope, preventing re-litigation creep, and ensuring that parties do not convert a limited remitter into a second full trial by stealth.

Judgment Points

1. The Court treated the appeal as a multi-issue contest rather than a single event.

2. The Court adopted a broad-brush approach where no key issue was insignificant or peripheral.

3. The Court ordered each party bear its own costs of the appeal due to roughly even success and failure.

4. The Court deferred trial costs to the retrial judge as costs in the cause because the practical result would only be known after retrial.

5. The Court refused to determine security for costs without a motion and evidence.

6. The Court made ambit-controlling retrial orders, binding parties to their existing record but allowing limited reopening on the remitted matters.

7. The Court refused to constrain the retrial judge by factual findings of the prior trial except to the extent overturned or necessarily arising within the remitted scope.

Legal Basis

The Court’s reasoning drew on the following sources.

Civil Procedure Act 2005 (NSW) s 98: costs are in the discretion of the Court.

Uniform Civil Procedure Rules 2005 r 42.1: if the Court makes an order as to costs, the Court is to order that costs follow the event unless it appears that some other order should be made.

Uniform Civil Procedure Rules 2005 r 51.53: the Court’s powers to order a new trial on a question without interfering with the decision on any other question and to order a new trial affecting only part of the matter in controversy.

Civil Procedure Act 2005 (NSW) s 89: procedure on a fresh trial after an appellate order for a fresh trial.

Evidence Chain

In this context, evidence is not primarily witness testimony about the underlying dispute. The evidence chain was a procedural chain.

1. The substantive appeal reasons identified seven key issues and the disposition of those issues.

2. The Court evaluated success and failure across those issues, and the resource significance of each.

3. The Court applied the costs discretion framework and the general rule to determine whether the usual rule should be displaced.

4. The Court evaluated whether the procedural prerequisites for security for costs had been met and held they had not.

5. The Court considered the risk of retrial scope expansion and made orders controlling reopening of evidence while binding parties to the existing litigation record.

Judicial Original Quotation

The Court held that both parties enjoyed roughly even measures of success and failure.

This statement is determinative because it is the hinge between the legal rule and the outcome. If success is balanced on substantial issues, it becomes objectively open, and often appropriate, to depart from the default costs position.

The Court held that the retrial judge should be at liberty to make findings of fact relevant to the matters remitted for retrial.

This statement is determinative because it preserves the integrity of the retrial as an adjudicative exercise. A limited remitter does not justify shackling a retrial judge with findings that may require re-evaluation within the remitted scope.

Analysis of the Losing Party’s Failure

The party that failed on the costs outcome for the appeal did not fail because the Court rejected the general rule. The failure was forensic and structural: the party’s submissions did not sufficiently account for the Court’s assessment that the appeal’s success was mixed across substantial issues. The Court did not accept a narrative of decisive overall success, because its own issue-by-issue assessment indicated near parity.

On security for costs, the failure was procedural. The Court held that such an order should not be entertained without a notice of motion and supporting evidence. The absence of those formal prerequisites foreclosed the application at this stage, irrespective of any asserted practical concerns about recoverability.

On retrial management, the Court accepted the need for ambit controls but refused undue constraints. Submissions that would have fixed the retrial judge to prior factual findings were rejected as imposing an undesirable constraint, inconsistent with a fair retrial limited to remitted issues.

Key to Victory

The party that achieved the most practical protection on the retrial management question succeeded by aligning its proposal with the Court’s institutional objective: keep the retrial limited, efficient, and fair, while preventing forensic re-booting of entire cases. The Court accepted that the existing pleadings, affidavit evidence, documentary tender, transcript record, and concessions should generally bind the parties, with limited and precisely defined reopening permissions.

On the costs of the first instance trial, the successful approach was pragmatic: the argument that the ultimate outcome remained unknown until after retrial, and that the retrial judge would be best placed to apply the costs-following-the-event concept once the remitted issues were resolved.

Reference to Comparable Authorities

Uniform Civil Procedure Rules 2005 r 42.1: the statutory expression of the general rule that costs follow the event unless the Court considers another order appropriate, supporting the proposition that departure is permissible where success is divided across substantial issues.

Uniform Civil Procedure Rules 2005 r 51.53: authority for ordering a new trial on any question without interfering with other decisions, supporting the proposition that retrials may be limited and structured to avoid unnecessary re-litigation.

Civil Procedure Act 2005 (NSW) s 89: authority concerning the procedure on a fresh trial after an appellate order, supporting the proposition that the retrial is an adjudicative exercise requiring case management consistent with fairness and efficiency.

Implications

1. Litigation success is rarely a single scoreboard. Where each side wins substantial issues, costs outcomes tend to be more nuanced than the public expects, and a broad-brush assessment may be determinative.

2. Costs arguments are stronger when they are structured. If you seek costs, map your wins and losses against the court’s identified issues, and explain why the event should be defined in your favour in a principled way.

3. Protective orders demand procedural discipline. Security for costs is not a rhetorical flourish. It requires a motion, evidence, and a court-ready explanation of why the order is just in the circumstances.

4. A limited retrial is not a second chance to rewrite your case. Courts tend to preserve the integrity of the existing record and only permit reopening where it is necessary to resolve the remitted issues.

5. A retrial judge must be free to decide what needs deciding. Attempts to freeze the retrial judge into earlier findings tend to be resisted if they would distort the fairness of the remitted hearing.

Q&A Session

Q1. If an appeal is allowed in part, does the appellant usually get its costs of the appeal?

A1. Not necessarily. Where success is mixed across substantial issues, the Court may determine that the usual approach should not apply and may order that each party bear its own costs, particularly where neither party can fairly be described as the clear winner on the appeal.

Q2. Why would the Court leave the costs of the trial to be costs in the cause?

A2. Because a retrial on remitted issues means the practical outcome of the litigation is not yet known. The retrial judge, having determined the remitted issues, is often in the best position to decide how the costs of the first trial and retrial should be allocated in a way that reflects the ultimate event.

Q3. Why did the Court not decide security for costs for the retrial?

A3. Because the Court held it was procedurally inappropriate to do so without a notice of motion and supporting evidence. Security for costs is a serious protective order and requires a properly supported application to be determined judicially.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Civil Procedure, Appellate Costs and Consequential Retrial Management in a Commercial Dispute

Judgment Nature Definition: Final judgment on costs and consequential orders after substantive appeal reasons, with directions affecting a limited retrial

2. Self-examination of Core Statutory Elements

Execution Instruction Applied for Category ⑨ Civil Litigation and Dispute Resolution

Core Test Standards: Jurisdiction, Limitation, and Disclosure as Structural Gatekeepers

The following standards are for reference only. They tend to be determinative in civil litigation, but outcomes depend on the specific facts, pleadings, evidence, and procedural compliance in the particular case.

A. Jurisdiction

1. Identify the forum’s source of power.

Determine whether the court is exercising original jurisdiction, appellate jurisdiction, or a statutory jurisdiction. Appellate proceedings often involve a distinct set of powers to set aside orders, remit issues, and order fresh trials.

1. Confirm whether the relief sought fits within the forum’s remedial powers.

Costs and retrial management orders must be supported by the court’s statutory or rules-based powers, including costs discretion and retrial powers.

1. Confirm whether any procedural precondition applies.

Applications for certain orders, including some protective orders, tend to require formal motions, evidence, and compliance with rules, rather than being determined informally.

B. Limitation Period

1. Identify the relevant cause of action and the limitation statute.

Commercial disputes often engage limitation rules that may bar claims or defences if time has expired.

1. Determine accrual.

Assess when the cause of action accrued, noting that contractual claims usually accrue on breach, while some equitable and statutory causes may accrue differently.

1. Identify tolling or extension mechanisms.

Some circumstances may support an extension or delayed accrual, but these are often tightly controlled and tend to be determined against the applicant where delay is unexplained.

1. Apply limitation consequences to pleadings and relief.

If limitation has expired, relief may be restricted or barred, which can shape costs and settlement dynamics.

C. Duty of Discovery and Disclosure

1. Identify discovery obligations.

Parties must comply with discovery and disclosure rules. Non-compliance can affect evidence admissibility, forensic fairness, and costs.

1. Ensure relevance and proportionality.

Discovery should be directed to the real issues, avoiding oppressive fishing expeditions. Courts tend to prefer targeted disclosure, especially where retrial scope is limited.

1. Confirm compliance evidence.

If discovery compliance is disputed, documentary proof of searches, categories, and production steps is often required.

1. Costs consequences.

Discovery failures can lead to adverse costs orders, directions limiting evidence, or other procedural sanctions.

D. Costs Discretion and the Event

1. Identify the governing rule and discretion source.

Uniform Civil Procedure Rules 2005 r 42.1 provides the general rule that costs follow the event unless another order appears appropriate. Civil Procedure Act 2005 (NSW) s 98 provides that costs are in the discretion of the Court.

1. Define the event.

In multi-issue litigation, the event may be the overall outcome, but substantial issue outcomes can also matter, particularly where success is divided.

1. Identify reasons to depart.

Departure may be justified where each party has substantial wins and losses, where a successful party failed on substantial issues, or where the litigation outcome is not finally known due to retrial orders.

1. Apply proportional judgment.

The Court may adopt a broad-brush approach rather than a granular issue taxation approach, particularly where issues were not peripheral.

E. Retrial and Ambit Control

1. Identify remitted issues.

A limited retrial must be confined to the issues identified by the appellate order.

1. Bind the parties to existing forensic choices where appropriate.

Where a retrial is limited, courts often require parties to adhere to pleadings, affidavit evidence, documentary tender, and transcript record from the first hearing, subject to limited reopening.

1. Reopening evidence requires controlled permissions.

Leave to adduce further oral or expert evidence tends to be granted only insofar as necessary to resolve remitted questions and ensure procedural fairness.

1. Preserve retrial judge adjudicative freedom.

Constraining a retrial judge to adopt prior factual findings tends to be resisted unless required by the appellate order or necessary implication.

3. Equitable Remedies and Alternative Claims

This section is for reference only. Equity and common law doctrines may offer alternative paths when statutory avenues are limited, but success tends to depend on precise evidence and careful pleading.

Promissory or Proprietary Estoppel

1. Clear and unequivocal representation.

Assess whether one party made a clear promise or representation about future legal relations, such as an assurance about renewal rights, ongoing exclusivity, or entitlement to a commercial benefit.

1. Reliance and detriment.

Determine whether the other party acted in reliance and suffered detriment, such as investing resources, expanding operations, or foregoing alternative opportunities.

1. Unconscionability.

Assess whether it would be against conscience to permit the promisor to depart from the assurance.

1. Relief.

Relief tends to be fashioned to avoid detriment, and may not necessarily equal full expectation recovery.

Unjust Enrichment and Constructive Trust

1. Benefit at expense.

Identify whether one party received a benefit at the other’s expense, which could include money, labour, or the value of business development.

1. Absence of juristic reason.

Assess whether a contract, gift, or statutory scheme provides the basis for retention, and whether the enrichment is unjust.

1. Appropriate remedy.

Remedies may include restitutionary orders, equitable liens, or declarations of beneficial interests, but these tend to be fact-intensive and contested.

Procedural Fairness as a Civil Procedure Counter-attack

1. Opportunity to be heard.

Even in civil proceedings, procedural fairness may arise in interlocutory management and evidentiary rulings. Denial of an opportunity to respond can ground appeal points.

1. Apprehension of bias.

If a reasonable observer might apprehend that the judge might not bring an impartial mind, this can ground setting aside orders, though the threshold tends to be high.

1. Remedy and practical effect.

Even where error is shown, appellate relief may be confined to limited remitter orders rather than a full re-hearing, depending on the nature of the error and the issues affected.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

1. Limitation periods.

Commercial and civil claims are often subject to limitation rules that can be fatal if expired.

1. Jurisdictional fit.

Relief must be sought in a forum with power to grant it.

1. Procedural compliance.

Applications for protective orders, including security for costs, tend to require proper motions and evidence.

1. Evidentiary coherence.

Claims and defences must be supported by admissible evidence aligned with pleaded issues.

Exceptional Channels

1. Limited retrial rather than full retrial.

Where appellate error affects only part of the controversy, the Court may order a new trial confined to that part, rather than disturbing the remainder.

1. Controlled reopening evidence.

Even in a limited retrial, the Court may grant leave to reopen evidence where necessary for fairness on the remitted issues, especially where primary findings were incomplete or legally misdirected.

1. Late procedural applications.

Certain applications may still be made to the retrial judge even if not decided on appeal, particularly where the appellate court considered it inappropriate to decide them without proper procedural foundation.

Suggestion

Do not abandon a potential procedural application simply because it failed on timing or form in one forum. It may remain open to be brought correctly, with motion and evidence, before the retrial judge, depending on the case management approach adopted.

5. Guidelines for Judicial and Legal Citation

Citation Angle

It is recommended to cite this case in legal submissions or debates involving:

1. Costs orders after a mixed outcome on appeal.

2. When and why the Court may depart from the general rule that costs follow the event.

3. The appropriate handling of trial costs when a retrial is ordered on remitted issues.

4. Appellate management of the ambit of a limited retrial, including binding parties to the existing record and controlled reopening of evidence.

Citation Method

As Positive Support: When your matter involves partial success and failure across substantial issues, citing this authority can strengthen an argument for an order that each party bear its own costs of the appeal, or another tailored order, depending on the structure of successes and failures.

As a Distinguishing Reference: If the opposing party cites this case to argue for no costs recovery despite your formal success, you should emphasise the uniqueness of your matter by demonstrating that your success was decisive across the substantial issues, or that the issues on which you failed were peripheral and consumed minimal resources.

Anonymisation Rule

When discussing this case in public-facing materials, do not use party names. Use procedural titles such as Appellant and Respondent, and identify the decision by its court, date, and medium neutral citation.

Conclusion

This decision demonstrates that civil litigation is not only about who is right, but also about how courts manage fairness, efficiency, and proportionality when outcomes are mixed and a limited retrial is required. The golden lesson is simple and enduring.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Supreme Court of New South Wales, Court of Appeal, Appellant v Respondent (No 2) [2025] NSWCA 218, aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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