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Cited legislation

2 cited instruments linked from this judgment.

On 14 August 2025, Ward P and Leeming JA dismissed the applicants’ application for leave to appeal against two interlocutory District Court decisions. One decision refused to strike out parts of Fraser’s statement of claim. The other granted security for costs in the applicants’ favour, but not in the amount they had sought. The earlier application was dismissed with costs ([1]). The judgment records that those costs were assessed at $13,897.68 ([2]).

Fraser filed a notice of motion on 29 April 2026 seeking immediate payment of the assessed costs ([2]). The question for Ball JA was whether the ordinary rule postponing payment of interlocutory costs should give way in the circumstances. A further question was whether Fraser should receive the costs of bringing the motion.

The order was that the costs of the leave application be payable forthwith ([12]). The Court did not award Fraser the costs of the later motion ([11]). The primary proceedings remained ongoing: they had not been set down for hearing, and an application to transfer them to the Federal Court was pending ([10]).

Why the court decided this way

The starting point was UCPR r 42.7(2). As described by Ball JA, the general principle is that interlocutory costs are not payable until the conclusion of the proceedings ([3]). The judgment explains the practical reasons for that approach: during litigation, parties may obtain costs orders on different interlocutory applications, so it can be preferable to assess the overall position at the end rather than have each order assessed and paid separately. Interlocutory costs orders may also be vacated ([3]).

The judgment recognised uncertainty about whether this principle applies to appeals or applications for leave to appeal from interlocutory orders. Ball JA noted that Gleeson JA had left that question open in Collier v Country Womens Association of New South Wales [2017] NSWCA 303 ([4]). The competing readings described in Collier were whether “the conclusion of the proceedings” means the conclusion of the underlying proceedings or the conclusion of the appeal proceeding. Ball JA did not resolve that interpretive question. Instead, he proceeded on the basis that r 42.7(2) applies to the costs of an interlocutory appeal, as Gleeson JA had done ([4]-[6]).

The judgment identifies three considerations relevant to exercising the discretion to order payment sooner: whether the decision determined a separately identifiable matter or completed a discrete aspect of the proceedings; whether the party ordered to pay acted unreasonably; and how long the proceedings are expected to continue ([7]). Ball JA referred to Fiduciary Ltd v Morning Star Research Pty Ltd [2002] NSWSC 432 at [11]-[13] as authority for those considerations.

Each consideration supported a forthwith order on the facts recorded in the judgment. First, the leave application was a separate and identifiable matter from the remaining District Court proceedings. Its costs order was not open to be set aside at a later stage in those proceedings ([8]). This reduced the force of waiting for the final conclusion and netting off costs across the ongoing case.

Second, the reasons in the earlier leave decision had described the application as “misguided from the outset”. In relation to the pleading issue, the applicants had accepted that striking out the challenged paragraphs would likely lead to an opportunity to replead, rather than dismissal of the proceeding. In relation to security for costs, the earlier Court of Appeal considered the applicants’ position novel and identified an inference that they sought to prevent Fraser, whose impecuniosity had been accepted by the primary judge, from pursuing his claims. Ball JA treated that earlier conclusion as tantamount to a conclusion that the applicants acted unreasonably in pursuing leave ([9]). The quoted reasoning at [9] comes from the earlier decision; Ball JA’s own conclusion in this judgment is the assessment that it amounted to unreasonable conduct.

Third, the primary proceedings were not set down for hearing, and the pending transfer application meant that a hearing was unlikely to occur soon ([10]). The expected delay was relevant because waiting until the conclusion of those proceedings could postpone payment for a substantial period.

The costs of the later motion were treated differently. Ball JA declined to order that Fraser receive those costs. The judge considered that the request for forthwith payment could have been made when the leave application was heard, and that the later motion could have been avoided if it had been brought before the costs were assessed. A further costs award could also create another round of dispute about costs. The likely amount involved made an additional order undesirable in the circumstances ([11]).

Before and after state of the law

Before this judgment, the general principle identified in the reasons was that interlocutory costs are ordinarily not payable until the conclusion of the proceedings, under UCPR r 42.7(2), unless the court orders otherwise ([3]). The rule’s application to interlocutory appeals was not treated as settled in the authorities discussed. Collier had left open whether the relevant conclusion is that of the underlying proceeding or of the appeal proceeding ([4]). The earlier decision in His Eminence Metropolitan Petar ... (No 2) [2007] NSWCA 142 was quoted in Collier for the proposition that costs of an appeal fall under r 42.7 and that a specific order is needed to make interlocutory costs immediately enforceable ([4]).

This judgment did not settle the broader interpretive issue. Ball JA expressly proceeded on the assumption that the rule covers interlocutory appeal costs ([6]). Its contribution is therefore a fact-specific application of the discretion to order otherwise, not a definitive construction of every aspect of r 42.7(2).

On the facts before the Court, the reasons show how the identified considerations can operate together: the appeal costs were discrete and not liable to be revisited in the primary proceeding; the earlier findings supported an inference of unreasonable conduct; and the primary case was unlikely to conclude soon ([8]-[10]). The judgment’s outcome demonstrates that those circumstances justified departure from the ordinary postponement principle in this case. It does not state that any single factor automatically requires forthwith payment.

The judgment supplied here does not describe any subsequent amendment to r 42.7(2), later appellate resolution of the interpretive question, or later judicial treatment of this decision. It is therefore not possible to state from this source whether the broader question has since been resolved or how later courts have applied this ruling.

Key passages with plain-English translation

At [3], the Court explains the ordinary rule and its rationale: interlocutory costs are generally deferred because costs orders may accumulate during litigation and may be better netted off at the end. In plain English, an interim costs order does not necessarily mean that money must immediately change hands.

At [6], Ball JA says: “Like Gleeson JA, I should proceed on the basis that UCPR r 42.7(2) includes the costs of an interlocutory appeal.” This means the Court treated the rule as applying to the current costs issue, without deciding whether that was the only possible interpretation.

At [7], the Court lists three discretionary considerations: whether the matter was separately identifiable or discrete, whether the paying party acted unreasonably, and how long the proceedings are expected to last. In practical terms, the Court looked at the character of the costs order, the conduct connected with the application, and the likely wait before the underlying case ended.

At [8], Ball JA explains that the appeal was a “separate and identifiable matter” and that its costs order could not later be set aside in the primary proceedings. In plain English, these costs were not simply one unresolved part of the District Court case that could be adjusted at the end.

At [9], Ball JA says the earlier assessment that the leave application was “misguided from the outset” was tantamount to a conclusion that the applicants acted unreasonably. This connects the earlier decision’s criticism of the application to one of the considerations relevant to immediate payment. The more detailed quoted passage in that paragraph is from the earlier judgment, rather than new reasoning by Ball JA.

At [10], the judgment notes that the proceedings were not set down for hearing and that transfer proceedings were pending. This mattered because it suggested that waiting for the underlying litigation to conclude could mean a lengthy delay.

At [11], the Court distinguishes the costs of the later motion. It considered that the motion could have been avoided, that a further costs order could provoke another dispute, and that the amount involved did not make an additional award desirable. Thus, the successful request for immediate payment did not result in a costs award for bringing that request.

What fact patterns trigger this precedent

The decision is most relevant to a situation involving costs of an unsuccessful interlocutory appeal or application for leave to appeal, where a party asks for those costs to be payable before the underlying proceedings end. The reasons identify a combination of circumstances rather than a rigid checklist.

The first is separateness: the appeal proceeding should be identifiable as distinct from the unresolved issues in the primary case, or should have completed a discrete aspect of it ([7]-[8]). Here, Ball JA also considered that the costs order could not later be set aside in the primary proceedings ([8]).

The second is conduct. The Court considered whether the party ordered to pay had acted unreasonably. In this case, the earlier Court of Appeal’s description of the leave application as misguided supported Ball JA’s conclusion on that factor ([9]). The judgment does not establish that merely losing an application, without more, amounts to unreasonable conduct.

The third is the likely duration of the primary proceedings. Here, there was no hearing date and a transfer application was pending, making an early conclusion unlikely ([10]). A shorter expected duration could be relevant to the discretionary balance, but the judgment does not prescribe how that factor should be weighed in other circumstances.

The decision also distinguishes the timing application from the question of costs for bringing it. Although the respondent obtained the requested payment order, the Court declined to award costs of the motion because of the potential to avoid that application and the prospect of further costs disputes ([11]). The judgment therefore illustrates that success on the substantive request does not, on these facts, dictate an award of the motion’s costs.

How later courts have treated it

The supplied judgment contains no later decisions applying, following, distinguishing, or questioning Gorilla Rush Pty Ltd v Fraser [2026] NSWCA 83. It would be unsupported by this source to describe the decision’s subsequent treatment.

The authorities that do appear in the judgment are earlier decisions. Collier is discussed for leaving open whether r 42.7(2) applies to interlocutory appeals and for the approach of proceeding on the assumption that it does ([4]-[6]). Fiduciary Ltd is cited as the source for the discretionary considerations listed at [7]. The 2025 Gorilla Rush v Fraser decision is the earlier costs decision that gave rise to the motion ([1]). His Eminence Metropolitan Petar ... (No 2) is mentioned through the passage quoted in Collier ([4]).

Those references explain the basis of Ball JA’s reasoning but do not provide evidence about how later courts have treated the 2026 decision.

Still-open questions

The main interpretive question remains unresolved within this judgment: does “the conclusion of the proceedings” in UCPR r 42.7(2), for an interlocutory appeal, mean the conclusion of the underlying litigation or the conclusion of the appeal proceeding itself? Ball JA expressly adopted the assumption that the rule applies to interlocutory appeal costs and did not choose between the competing constructions outlined in Collier ([4]-[6]).

The judgment also does not define the threshold for finding that a matter is sufficiently discrete, or specify how the three discretionary considerations should be weighted when they point in different directions. It records the factors and applies them to the circumstances before it ([7]-[10]), but does not create a formula.

Nor does the judgment state whether an earlier finding that an application was misconceived will ordinarily establish unreasonable conduct for this purpose. Ball JA’s description was tied to the particular reasons in the earlier decision, including its characterisation of the application and the circumstances concerning the security-for-costs issue ([9]).

Finally, the source does not establish how later courts have interpreted the ruling, whether the rule’s wording or application has changed, or whether subsequent authority has resolved the outstanding construction issue. Those matters require sources beyond this judgment.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.