Sze Tu v Lowe (No 2) [2015] NSWCA 91

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sze Tu v Lowe (No 2) [2015] NSWCA 91 Hearing dates: On the papers Date of orders: 10 April 2015 Decision date: 10 April 2015 Before: Meagher JA at [1]; Barrett JA at [2]; Gleeson JA at [3] Decision: 2013/107940 (Sunly and Gordon); 2013/107472 (Margaret); 2013/108447 (Helen)

(1)The first and second respondents pay 85% of the respective appellant's costs of the appeals.

(2)In lieu of orders 9 and 11 of the orders made by Gzell J on 13 March 2013, substitute the following orders:

"9(a)The first and second plaintiffs pay the second, third, fifth and sixth defendants' costs of the proceedings at first instance, including the proceedings before Smart AJ.

(b)Subject to (c) below, the first defendant (the Estate) pay 35% of the plaintiffs' costs of the proceedings at first instance, including the proceedings before Smart AJ.

(c)The costs order referred to in (b) above is payable only to the extent that the costs can be satisfied from the late Kut Sze Tu's 20% share of the net proceeds of sale of the assets of the partnership currently held by the Estate (being the partnership declared by Smart AJ on 25 June 2010).

11The Court notes that the costs ordered to be paid by paragraph 9(a), (b) and (c) above and paragraph 10 of the orders made by Gzell J on 13 March 2013 are payable now (subject to assessment) and shall not be deferred until the completion of the taking of the inquiry provided for in paragraph 3(iv) of the orders made in each appeal by this Court on 23 December 2014." Catchwords: COSTS – costs of appeal – general rule that costs follow the event – whether reason shown to depart from the general rule – where multiple issues and more than one event – whether appellants should be deprived of part of their costs – where appellants not successful on all issues