Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Scenic Tours Pty Ltd v Moore (No 2) [2023] NSWCA 101 Hearing dates: On the papers Date of orders: 18 May 2023 Decision date: 18 May 2023 Before: Ward P, Kirk JA, Griffiths AJA Decision: 1. The appeal be allowed in part. 2. Set aside Orders 3 to 5 and 13 to 18 made on 24 June 2022. 3. Set aside Order 9(b) made on 24 June 2022. 4. Set aside Order 6 made on 26 August 2022. 5. The Common Questions and Answers are varied in accordance with the document entitled "Agreed Common Questions & Answers" dated 4 May 2023, a copy of which is annexed to these reasons for judgment. 6. Set aside Order 5 made on 26 August 2022 and in lieu thereof order that: (a) the appellant pay the respondent's costs of the proceedings below up to 30 April 2020 as agreed or assessed; (b) the appellant pay 90% of the respondent's costs of the proceedings from 1 May 2020 to 26 August 2022 as agreed or assessed. 7. The appellant pay 90% of the respondent's costs of the application for leave to appeal and of the appeal. Catchwords: COSTS – costs on appeal – where appeal allowed in part – apportionment of costs where mixed outcome on appeal – significance of successful ground of appeal – costs at first instance – re-exercise of costs discretion where different outcome on appeal Cases Cited: Scenic Tours Pty Ltd v Moore [2023] NSWCA 74 Category: Costs Parties: Scenic Tours Pty Ltd (Appellant) David Moore (Respondent) Representation: Counsel: D Weinberger (Appellant) J Hogan-Doran/ N Li (Respondent) Solicitors: SWS Lawyers (Appellant) Somerville Legal (Respondent) File Number(s): 2022/00136307 2022/00140758 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2022] NSWSC 270 Date of Decision: 14 April 2022 Before: Garling J File Number(s): 2014/00223271 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] JUDGMENT 1. THE COURT: On 20 April 2023, the Court published reasons for judgment in Scenic Tours Pty Ltd v Moore [2023] NSWCA 74. We will assume familiarity with those reasons for judgment and, for convenience, we will use the same abbreviations. In brief, the appeal was dismissed save in relation to the award of damages for airfares to a sub-set of group members. 2. The parties were ordered to file and serve submissions regarding the terms of final orders. This has occurred. The parties were informed that final orders would be made on the papers. 3. The parties agree to the making of what will be orders 1 to 5, which include modifications to the "Common Questions and Answers". They disagree, however, on both the costs of the appeal and of the hearing below. The disagreement relates not to the relevant principles (which are well settled), but to the apportionment of costs to reflect the appellant's success on the issue of Airfares Damages. Determination 1. As to the costs of the appeal, the appellant contended that it should be ordered to pay 85% of the respondent's costs for the application for leave to appeal and of the appeal. The respondent contended that this figure should be 90%. 2. The respondent's position is preferred. It is supported by the fact that the Airfares Damages was by far the least significant issue in the appeal in terms of resources spent, as is reflected in the relatively modest time which was devoted to it in both oral and written submissions. 3. As to the costs below, the appellant contended that, in substitution for the primary judge's order that it pay the respondent's costs of the proceedings up to 26 August 2022, it was appropriate to make the following order: 1. the appellant pay the respondent's of the proceeding up to 30 April 2020 as agreed or assessed; and 2. the appellant pay 85% of the respondent's costs of the proceedings from 1 May 2022 to 26 August 2022 as agreed or assessed. 1. Although it was not made clear in the appellant's submissions in support of these proposed orders why the date of 30 April 2020 was chosen, we infer that it is because this is the day immediately before the primary judge made directions regarding the assessment of damages, which included an assessment of the Airfares Damages (following the High Court's remitter on 24 April 2020). In support of its notice of motion filed on 31 July 2020 concerning the assessment of damages generally, the plaintiff served a lengthy affidavit to which was attached extensive "Airfare Documents", as well as affidavits by 31 guests, which included evidence on Airfares Damages. 2. The respondent contended that the primary judge's order as to costs should stand. 3. In the circumstances of this matter, we see no reason to disturb the primary judge's order as to costs, at least up to 30 April 2020. For the period from 1 May 2020 to 26 August 2022, however, we consider that it is appropriate to vary the primary judge's order such that the appellant pay 90% of the respondent's costs of the proceeding for that period. This apportionment is consistent with that made on the appeal having regard to Airfares Damages. Conclusion 1. For these reasons, the following final orders will be made. 1. The appeal be allowed in part. 2. Set aside Orders 3 to 5 and 13 to 18 made on 24 June 2022. 3. Set aside Order 9(b) made on 24 June 2022. 4. Set aside Order 6 made on 26 August 2022. 5. The Common Questions and Answers are varied in accordance with the document entitled "Agreed Common Questions & Answers" dated 4 May 2023, a copy of which is annexed to these reasons for judgment. 6. Set aside Order 5 made on 26 August 2022 and in lieu thereof order that: 1. the appellant pay the respondent's costs of the proceedings below up to 30 April 2020 as agreed or assessed; 2. the appellant pay 90% of the respondent's costs of the proceedings from 1 May 2020 to 26 August 2022 as agreed or assessed. 1. The appellant pay 90% of the respondent's costs of the application for leave to appeal and of the appeal. ********** Agreed Common Questions and Answers (4 May 2023) (232510, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2023