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[2025] QCA 265
procedural. The appellants must pay 25% of the respondent’s appeal costs and the respondent’s costs thrown away by the amendment application; trial costs remain reserved for the trial judge.
The appellants won some, but not all, parts of their appeal. They lost completely on whether the respondent's alleged contract breach let them end the contract and avoid the restraints, but succeeded substantially on some questions about the restraints. The Court took that mixed result into account and ordered them to pay 25 per cent of the respondent's appeal costs. Because the appellants had sought permission to amend their appeal, they also had to pay the respondent's costs thrown away by that application. The trial costs were left for the primary judge to decide.
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2,139 words · generated 07/10/2026
This judgment deals with costs after an earlier appeal judgment. It does not decide the underlying appeal afresh. On 2 December 2025, the Court of Appeal allowed the appeal in part, varied parts of the orders made on 5 September 2025, and dismissed the appeal otherwise. The variation deleted “Restricted Patient or” from Orders 1(b) and 1(c), and deleted Order 1(d). The Court then invited written submissions on appeal costs and said it would determine them on the papers unless a party requested otherwise ([2]). Both parties filed costs submissions, and neither opposed determination on the papers ([3]).
No linked legislation citations have been extracted yet.
The parties were the appellants, Reims Investments Pty Ltd as trustee for the McPherson Family Trust and Simone Jacqueline Sutton Campbell, and the respondent, City Fertility Sydney CBD Pty Ltd, formerly CFC Global Pty Ltd. Bradley JA agreed with Doyle JA's reasons, and Henry J also agreed ([1], [23]). Doyle JA gave the reasons on the costs issues.
There were three matters to resolve. First, who should pay the costs of the appellants' application for leave to amend their notice of appeal. Second, how to allocate the costs of the appeal after the appellants' divided success. Third, whether the Court of Appeal should determine costs of the trial. The orders were that the appellants pay 25 per cent of the respondent's appeal costs, pay the respondent's costs thrown away by the amendment application, and leave the trial costs reserved for the trial judge ([22]).
The judgment refers to two broad categories of issues in the underlying appeal. The first concerned whether the respondent was in breach of contract in a way that entitled the appellants to terminate the contract and avoid the restraints entirely. The second concerned the meaning and enforceability of the restraints, including construction, reasonableness between the parties, and public-interest questions ([16]). The costs judgment summarises the result but does not reproduce the full reasoning on those substantive issues.
For the amendment application, Doyle JA stated the general rule: “the party seeking the indulgence of the Court will be required to pay the costs of the application, including costs thrown away” ([7]). The appellants had filed a proposed amended notice of appeal on 27 October 2025. The respondent initially opposed the proposed amendments, but abandoned that position on 12 November 2025, the day before the appeal hearing and after one proposed new ground had been abandoned ([4]). The appellants argued that the respondent should pay their application costs because expense could have been avoided had consent been given earlier ([5]).
The respondent sought its costs of the application. It argued that its initial opposition was warranted, given that the appellants ultimately succeeded in respect of only one of ten new grounds ([6]). The Court's decisive finding was that there was “no basis to depart” from the general rule because the respondent had not unreasonably withheld consent ([8]). The appellants therefore had to pay the respondent's costs thrown away by the application ([9], [22]). The judgment does not state a separate percentage or detailed assessment for those costs.
The appeal costs required a different assessment. Both sides claimed significant success ([13]). The appellants relied on the reduction in the operation of the injunction and sought their appeal costs ([14]). The respondent sought all, or alternatively 90 per cent, of its appeal costs, pointing to its success on seven of the nine grounds advanced in the amended notice ([15]). The Court did not resolve the question by counting grounds alone. It grouped the appeal issues by subject matter and assessed the parties' success across those broader topics ([16]–[20]).
On the contract-breach issue, the appellants failed entirely. On the restraint issues, they achieved substantial but incomplete success. One restraint was not reasonable between the parties, and parts of two other restraints, though reasonable between the parties, were unreasonable against the public interest. Those parts were severed. The Court noted that both what was removed and what remained were substantial ([17]–[18]). It considered that, if the restraint issues were looked at in isolation, the appellants should receive the majority, but not all, of their costs for that group. If the contract issue were considered alone, the respondent should receive its costs of that issue ([20]).
The Court referred to the principles discussed in Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39. The passage reproduced at [19] describes the general approach: a successful party will ordinarily not lose its costs merely because it failed on some issues, though a separate costs order may be appropriate for a definable and severable matter that occupied a significant part of the proceeding. Doyle JA then said the costs required a broad approach and fixed the respondent's share at 25 per cent ([21]). The judgment does not explain the arithmetic behind that percentage, so it should be understood as the Court's assessment of the mixed result, not as a formula stated in the reasons.
This costs judgment does not announce a new general rule about costs. It applies two sources of guidance to the particular procedural and appeal outcomes before it. For amendment applications, it states a general rule that the party asking for the Court's indulgence is required to pay the application costs, including costs thrown away ([7]). The Court applied that rule because it found that the respondent's initial opposition to the proposed amendments had not been unreasonable ([8]–[9]).
For the appeal itself, the Court relied on the approach discussed in Speets. The quoted passage at [19] explains that losing on some issues will ordinarily not suffice, by itself, to deprive a successful party of its costs. It also recognises that a costs order on a particular question or part may be appropriate if that issue is definable, severable, and occupied a significant part of the proceeding. The Court's own application of that framework was to consider the two broad issue groups, assess each side's success, and make an overall percentage order ([16]–[21]).
Accordingly, the “before and after” significance is limited. The judgment applies existing costs principles to a case where success was divided by issue and where the amendment application had its own costs consequences. It does not say that a party's proportion of successful grounds mechanically determines the proportion of costs payable. Nor does it set out a general percentage for cases involving partial success. The 25 per cent figure is the order made on these facts.
The judgment also leaves one aspect of costs to the primary judge. It records that trial costs had not yet been determined and that submissions had been made below. The Court considered that the proper course was for the primary judge to decide them ([10]–[12]). That is a case-management allocation in this proceeding, not a broader statement about every case in which trial and appeal costs overlap.
At [7], Doyle JA stated: “As a general rule, the party seeking the indulgence of the Court will be required to pay the costs of the application, including costs thrown away.” In plain English, a party who asks the Court for permission or a procedural concession will generally bear the costs caused by making that request. Here, that principle applied to the appellants' request to amend their notice of appeal.
At [8], the Court said the respondent “did not unreasonably withhold consent” to the proposed amendments. This finding matters because the respondent's later consent did not automatically make it responsible for the costs of the application. The Court considered the reasonableness of the respondent's earlier position and found no reason to displace the ordinary rule.
At [17], the Court distinguished between two categories of appeal issues. It said the appellants “failed entirely” on the contract issue but had “substantial but not complete success” on the restraint issue. This is the core factual assessment behind the divided costs order. It explains why neither side obtained all the costs it sought.
At [19], the Court reproduced the approach discussed in Speets: failure on some issues will ordinarily not, by itself, deprive a successful party of its costs, but a particular issue may justify a separate costs order where it is definable, severable, and significant in the proceeding. In plain English, courts look at how the issues relate to each other and how much they mattered, rather than mechanically counting wins and losses.
At [21], Doyle JA concluded that a broad assessment produced an order requiring the appellants to pay 25 per cent of the respondent's appeal costs. This states the result, not a calculation method. The reasons do not assign a specific percentage to each broad issue before arriving at the overall figure.
The judgment is most directly relevant to costs after an appeal in which the parties have materially different degrees of success on distinct issues. Here, the appeal included a contract-breach issue on which the appellants failed entirely and a separate group of restraint issues on which they achieved substantial but incomplete success ([16]–[18]). The Court assessed those issue groups separately before adopting an overall approach to costs ([20]–[21]).
It is also relevant where a party seeks leave to amend an appeal document and the other party initially opposes the proposed amendments but later consents. The Court applied the general rule concerning costs of an application and considered whether the respondent's refusal to consent had been unreasonable ([7]–[9]). The facts included the timing of the respondent's change of position and the abandonment of one proposed ground before that change ([4]).
The judgment's discussion of the appeal costs also indicates why the character of the issues can matter. A result based on multiple grounds may not be adequately described by counting the grounds that succeeded. The Court instead identified broad categories, considered the practical success within each category, and noted that both the parts removed and those remaining were substantial ([16]–[20]). The judgment does not prescribe a universal test beyond the principles it cites and applies.
The decision does not provide a basis for treating every partially successful appeal or every amended notice of appeal the same way. The costs outcome depends on the Court's assessment of the relevant circumstances, including whether opposition to an amendment was unreasonable and how success was distributed across the issues.
This judgment was delivered on 19 December 2025. The supplied text contains no information about later cases considering, applying, distinguishing, or otherwise treating this costs decision. No claim about later judicial treatment can therefore be made from the judgment provided.
The sources it itself refers to are Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39, which it uses for the appeal-costs principles, and Stanley v Layne Christensen Company [2006] WASCA 56, cited at [7] for the general rule concerning costs of an application. At [19], the passage quoted from Speets itself refers to Courtney v Chalfen, Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd, and BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2). Those references appear within the passage discussing the principles in Speets; this costs judgment does not separately analyse the facts or outcomes of those cases.
The reasons give the overall allocation of appeal costs but do not explain how the Court arrived at precisely 25 per cent. They identify the appellants' complete failure on one broad issue and substantial, incomplete success on another, then state the resulting percentage ([16]–[21]). The judgment does not provide a mathematical weighting for the two issue groups or specify how the costs of individual grounds were treated.
The order on amendment costs is also expressed as the respondent's “costs thrown away” by the application, without quantifying them or describing how they are to be assessed ([22]). The reasons establish who bears those costs, but the text supplied does not explain the subsequent assessment process.
The judgment does not reproduce the full reasons delivered on 2 December 2025. Its summary of the restraint issues is limited to the outcome: one restraint was not reasonable between the parties, parts of two others were unreasonable against the public interest, and those parts were severed ([17]–[18]). A detailed analysis of the underlying restraint law or the substantive appeal would require those earlier reasons, which are not included here.
Finally, trial costs remained reserved for the primary judge ([10]–[12], [22]). The costs judgment does not disclose what order the primary judge later made, or how the submissions below were resolved.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Reims Investments Pty Ltd v City Fertility Sydney CBD Pty Ltd [No 2] [2025] QCA 265
PARTIES: REIMS INVESTMENTS PTY LTD (ACN 128 900 390) AS TRUSTEE FOR THE MCPHERSON FAMILY TRUST / ABN 25 289 926 062 / (first appellant) / SIMONE JACQUELINE SUTTON CAMPBELL / (second appellant) / v / CITY FERTILITY SYDNEY CBD PTY LTD (FORMERLY CFC GLOBAL PTY LTD) / ACN 146 707 708 / (respondent)
FILE NO/S: Appeal No 4265 of 2025 / SC No 1029 of 2025
DIVISION: Court of Appeal
PROCEEDING: Further Orders – Costs
ORIGINATING COURT: Supreme Court at Brisbane – [2025] QSC 210 (Copley J)
DELIVERED ON: 19 December 2025
DELIVERED AT: Brisbane
HEARING DATE: Heard on the papers
JUDGES: Bradley and Doyle JJA and Henry J
ORDERS: The appellants are to pay 25 per cent of the respondent’s costs of the appeal. The appellants are to pay the respondent’s costs thrown away by the application for leave to amend the notice of appeal. The costs in respect of the trial remain reserved for determination by the trial judge.
CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the parties provided further submissions on the issue of costs – where the appellants had filed an amended notice of appeal – where the respondent initially opposed the application but later consented to the amendments – where both parties seek the costs of the application and costs of the appeal – where the respondent alternatively seeks 90 per cent of its costs of the appeal – where the appellants seek costs in respect of the trial – where the appellants enjoyed substantial but not complete success in respect of the reasonableness and enforceability of the Restraints – where the appellants failed entirely in respect of the breach of Contract issue – whether the appellants ought to pay the respondent’s costs thrown away by the application to amend the notice of appeal – whether the appellants ought to pay all or part of the respondent’s costs of the appeal – whether the respondent ought to pay all or part of the appellants’ costs of the appeal / Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39, applied / Stanley v Layne Christensen Company [2006] WASCA 56, cited
COUNSEL: D A Savage KC, with B W J Kidson, for the appellants / A C Stumer KC, with F Y Lubett and B O'Brien, for the respondent
SOLICITORS: Gadens Lawyers for the appellants / Ashurst for the respondent
BRADLEY JA: I agree with Doyle JA.
DOYLE JA: On 2 December 2025, the Court delivered its reasons in the appeal. I will in these reasons adopt the definitions used in those reasons. The Court made the following orders:The appeal is allowed in part.The Orders made 5 September 2025 are varied by:Deleting the words “Restricted Patient or” from Orders 1(b) and 1(c);Deleting Order 1(d).The appeal otherwise is dismissed.The parties are to provide written submissions of no more than 5 pages on the costs of the appeal within 5 days of the delivery of judgment in the appeal, and that unless otherwise requested by a party, the costs will be determined by the Court on the papers.
On 8 and 9 December 2025, the parties filed their submissions as to costs. Neither party opposed this Court dealing with the issue on the papers.
Application for Leave to Amend the Notice of Appeal
On 27 October 2025, the appellants filed a proposed amended notice of appeal.1 The respondent was invited to consent to the amendments. The respondent initially opposed the application2 but abandoned that position on 12 November 2025 (that is the day before the hearing of the appeal, and after one of the new grounds of proposed appeal was abandoned).
The appellants submit that material expense would have been avoided had the respondent agreed to the amendments. Thus, in circumstances where the respondent later agreed to the amendments, without any explanation, the respondent should be ordered to pay their costs of the application.
The respondent seeks its costs of the application. It urges that despite ultimately agreeing to the amendments, its initial opposition was warranted, considering the appellants only enjoyed success in respect of one of ten new grounds.3
As a general rule, the party seeking the indulgence of the Court will be required to pay the costs of the application, including costs thrown away.4
There is no basis to depart from this general rule. The respondent did not unreasonably withhold consent to the appellants’ proposed amendments.
An order should be made that the appellants pay the respondent’s costs thrown away by the application to amend the notice of appeal.
Costs of the Proceeding Below
The primary judge has not yet determined the issue of costs in respect of the trial, which are reserved. The parties have made written submissions below in that regard.
The appellants have made submissions in respect of these costs. As the respondent rightly points out, the Orders made on 2 December invited the parties to provide submissions on the costs of the appeal.
While the notice of appeal did seek an order that the respondent pay the appellants’ costs of the originating application, the proper course is to have the costs of the trial determined by the primary judge.
Costs of the Appeal
Both parties assert that they have enjoyed significant success on the appeal.5
The appellants seek costs of the appeal, having regard to the reduction in the operation of the injunction.6 In this respect, there are, it is said, no special or exceptional circumstances warranting a contrary order.
The respondent, on the other hand, seeks an order in its favour for the whole, or alternatively 90 per cent, of its costs of the appeal. The respondent points to its success in respect of seven of the nine grounds of appeal advanced in the appellants’ amended notice of appeal.7
The issues on appeal were divided into two broad categories: the first was whether the respondent was in breach of the Contract such that the appellants were entitled to terminate it and not be bound at all by the Restraints; the second, concerned the meaning and enforceability of the Restraints. That second issue itself gave rise to a number of issues of construction, whether the Restraints were reasonable between the parties and whether they were unreasonable against the public interest.
On the first of these broad issues the appellants failed entirely. On the second, the appellants did enjoy substantial but not complete success. The outcome was that one Restraint was not reasonable between the parties and parts of two others while reasonable between the parties were unreasonably against the public interest.
Those parts (namely the Restraints as at clause 19.5(a) and parts of clause 19.4(a)(2)-(3)) were severed. Both what was removed and what remained are substantial.
Bond J discussed the applicable principles concerning the exercise of the Court’s discretion as to costs in Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39 at [11]-[17]. In particular at [16] it is said:
“The general approach is that there must be special or exceptional circumstances to warrant depriving a successful party of its costs and the mere fact that the successful party has been unsuccessful on some issues will ordinarily not be sufficient to do so: Courtney v Chalfen [2021] QCA 25 at [5]. On an appeal, for example, where a party has succeeded on one of two ways to the same outcome, the Court of Appeal might well regard the costs of the second way on which that party failed as not so distinct conceptually or practically as to warrant making a costs order which reflected that party’s failure: Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd at [1]. On the other hand, one circumstance in which it might be appropriate to award costs of a particular question or part of a proceeding is where that matter is definable and severable and has occupied a significant part of the proceeding: see Courtney v Chalfen, in which the Court of Appeal referred with approval to the decision of McMurdo J (as his Honour then was) in BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2) [2009] QSC 64 at [8].”
The appellants have had success in the appeal and while as mentioned, that is significant, it was limited to aspects only of the second of the two broad groups of issues I have mentioned. If considered in isolation the appellants should be awarded the majority but not all of their costs on the second group of issues. On the other hand, it wholly failed on the separate issue identified in the first of those two groups of topics and if that is considered in isolation the respondent should be awarded its costs of that issue.
Adopting, as it must be, a broad approach the appropriate order in my view is that the appellants pay 25 per cent of the respondent’s costs of the appeal.
Disposition
The appellants are to pay 25 per cent of the respondent’s costs of the appeal.
The appellants are to pay the respondent’s costs thrown away by the application for leave to amend the notice of appeal.
The costs in respect of the trial remain reserved for determination by the trial judge.
That application was formally filed in the Court of Appeal Registry on 31 October 2025. ↩
Such opposition being communicated to the appellants on 29 October 2025. ↩
Respondent’s Outline of Submissions on Costs at [28]. ↩
Stanley v Layne Christensen Company [2006] WASCA 56 at [52]. ↩
Appellants’ Outline of Submissions on Costs at [15]; Respondent’s Outline of Submissions on Costs at [1]. ↩
Appellants’ Outline of Submissions on Costs at [16]. ↩
Respondent’s Outline of Submissions on Costs at [2], [9], [11]. ↩
Reims Investments Pty Ltd
City Fertility Sydney CBD Pty Ltd [No 2] [2025] QCA 265
The appellants must pay 25% of the respondent’s appeal costs and the respondent’s costs thrown away by the amendment application; trial costs remain reserved for the trial judge.