But Your Honour, We Won… How You Can Lose on Costs – Even When You Win

April 2023
Region: Asia Pacific

Civil litigation can be expensive. While participants usually understand that, if they are successful, they could be awarded costs, they frequently fail to consider the factors that might impact the prospects of obtaining this award beyond “‘succeeding”’. This article explores the often glossed over issue that how a case is run may have a significant impact on the quantum of costs a party might recover, which is particularly salient given the recent NSW Supreme Court decision by Justice Black in Warburton v County Construction (NSW) Pty Ltd (No 3) [2022] NSWSC 1563 (Warburton) that provides a reminder of the factors considered by the court when departing from the general rule that costs follow the event, and of the inherent dangers of adopting a “kitchen sink” approach to the claims pursued and the evidence tendered in support of those claims.