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[2024] ACTCA 35
procedural. The costs order made on 14 November 2024 was confirmed, requiring the respondent to pay the appellant’s costs of the appeal and the proceedings at first instance.
The respondent asked the Court to change an earlier order that she pay the appellant's costs of both the appeal and trial. The Court rejected the argument that the appellant had won on a point not raised at trial, because that contradicted what the Court had already found in the appeal. It also rejected the idea that the respondent was the overall winner because the appellant lost the debt claim. The appellant succeeded on other issues that determined the final result, and the claims were not sufficiently separate to justify dividing the costs. The original costs order therefore remained in place.
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2,319 words · generated 08/10/2026
This judgment concerns costs after an appeal, not a fresh determination of the underlying dispute. The Court of Appeal had already delivered two judgments in the proceeding. In the first, it found that error at first instance had been established, in [2024] ACTCA 8, referred to in this judgment as . In the second, it dealt with the consequences of its findings, in [2024] ACTCA 29, referred to as [1].
1 cited instrument linked from this judgment.
One order made in Wu (No 2) required the respondent, Angela Chien-Kuang Wu, to pay the appellant, Chin-Sheng Wu, the costs of both the appeal and the proceeding at first instance [2]. The respondent applied to change that order. She sought an order that the appellant pay the trial costs while she paid the appeal costs. Alternatively, she asked that each party bear their own costs of both stages [3].
The respondent advanced two related lines of argument. First, she said the appellant had succeeded on a point that had not been run at first instance. Her submissions relied partly on a concession the appellant's counsel had made during appeal argument. The Court had considered that matter in the earlier appeal judgment, including after supplementary submissions, and had not accepted the position attributed to that concession [4]–[6].
Second, the respondent argued that the appellant's “primary claim” at trial was a common law debt claim, which failed, while the equitable claims were only alternatives. From that characterisation, she argued that she was ultimately the successful party at first instance [7].
The Court heard the costs application on the papers and gave its decision on 16 December 2024. It confirmed the existing order: the respondent was to pay the appellant's costs of the appeal and proceedings at first instance [14].
The Court began with the governing costs framework. Rule 1721(1) of the Court Procedures Rules 2006 (ACT) provides the relevant discretion, and r 5001 applies that costs rule to civil appeal proceedings [8(a)]. The discretion is wide, but it must be exercised judicially, in accordance with established principle and statutory context. The Court cited Oshlack v Richmond River Council for that proposition [8(b)].
The Court explained that the fundamental purpose of a costs order is to compensate the successful party, not to punish the unsuccessful party. It cited EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd, Latoudis v Casey and Foots v Southern Cross Mine Management Pty Ltd in support [8(c)]. The usual description is that “costs follow the event”. The relevant event is determined by looking at the substantive outcome, rather than treating each procedural step or claim in isolation [8(d)].
That does not mean that the Court can never divide costs by issue. The judgment recognises that apportionment may be available, including under r 1705, when a party succeeds on one cause of action but fails on another [11]. But the cited general approach is not to differentiate between every issue on which a party succeeded or failed. Unless an issue, or group of issues, is clearly dominant or separable, costs will ordinarily be awarded to the successful party for the proceeding without issue-by-issue division [8(e)–(f)].
The Court treated fairness as the touchstone. The costs order must be appropriate in the particular circumstances and in the interests of justice. The judgment describes this as a “broad evaluative judgment of what justice requires”, citing Clarkson Williams Partners Pty Ltd v Vaughan (No 2) and Gray v Richards (No 2) [8(g)].
Applying those principles, the Court rejected the respondent's argument about a point not raised at trial. It said parties may be bound by how they conduct their case, but the Court is not bound by counsel's submission on appeal about how the case was conducted, even if that submission is against the party's interests [5]. More importantly, the respondent's argument was inconsistent with the Court's express finding in Wu that the claim on which the appellant succeeded had been advanced at first instance. The respondent and the primary judge had viewed that aspect of the case differently, but the appeal Court had found that view to be in error [6]. The alleged lack of a trial-level argument therefore did not justify changing the costs order.
The Court also rejected the respondent's attempt to identify the debt claim as decisive of who succeeded at first instance. It identified four issues relevant to the respondent's position: a debt claim, an equitable claim based on unconscionable conduct, an equitable claim based on undue influence, and a defence of laches to the equitable claims [9]. The appellant failed on debt. The unconscionable conduct issue did not need to be decided. The appellant succeeded on undue influence and laches, and those issues determined the result and final relief [10].
The Court did not treat the labels “primary” and “alternative” as controlling. It assessed the proceeding as a whole [9]. The unsuccessful debt claim was connected to the successful undue influence claim: because the respondent succeeded in defending the debt claim, she was, at law, a volunteer and could not resist the undue influence claim extending to her interest in the property [12]. The judgment also records that the unconscionable conduct and undue influence claims were legally distinct, but many material facts overlapped. That made them insufficiently separable for the costs argument advanced [13].
This judgment does not purport to create a new general costs rule. It applies established principles to the particular procedural and factual setting. Before this decision, the relevant framework, as stated by the Court, was that costs are discretionary, the discretion is broad but judicial, and the ordinary approach is for costs to follow the substantive event [8(a)–(d)].
The judgment also restates the established qualification to that ordinary approach. A court may apportion costs between issues, but it generally need not do so merely because the successful party failed on some issues. Apportionment is more apt where an issue is clearly dominant or separable [8(e)–(f), 11]. This means that identifying a failed claim does not by itself determine who succeeded overall for costs purposes.
After this decision, the costs order in this proceeding remained unchanged. The judgment confirms that the Court considered the overall outcome, the relationship between the issues, and whether any issue could fairly be separated for costs. It does not state that every case involving mixed success must result in one party receiving all costs. Its reasoning depends on the specific finding that there was no clearly dominant or separable issue in this proceeding [11]–[14].
The reasons also distinguish between two questions that can otherwise be conflated. One is whether a party succeeded on a particular claim or issue. The other is whether that success or failure makes the party the successful party in the proceeding as a whole. Here, the appellant failed on the debt issue but succeeded on issues that determined final relief. The Court treated the substantive overall result, rather than the label attached to the debt claim, as central [9]–[12].
At [5], the Court said that parties may be bound by how they conduct a case, but the Court is not bound by counsel's account on appeal of how the case was conducted, even if that account is against counsel's client's interests. In plain English, a submission or concession at the appeal hearing did not displace the Court's own assessment of the earlier proceedings.
At [6], the Court said the respondent's argument was contrary to the express findings in Wu. The appeal judgment had found that the claim on which the appellant succeeded was advanced at first instance. In plain English, the costs application could not reopen that issue by presenting a different account of what happened at trial.
At [8(f)], the Court adopted the proposition that where no particular issue is clearly dominant or separable, it will ordinarily be appropriate to award the costs of the proceedings to the successful party without trying to divide costs according to each issue. In plain English, courts do not necessarily calculate separate costs for every successful and unsuccessful claim.
At [9], the Court said: “The Court views the proceeding as a whole.” In plain English, the Court did not decide costs merely by asking which claim came first or whether a claim was described as the primary or alternative case.
At [10], the Court set out the relevant pattern of success and failure: the appellant failed on debt, the unconscionable conduct issue was unnecessary to decide, and the appellant succeeded on undue influence and laches. Those latter issues determined the outcome and final relief. In plain English, the result on the issues that mattered to the final orders carried particular weight in deciding costs.
At [12]–[13], the Court explained why it did not treat the claims as cleanly separable. The respondent's success on the debt claim meant she was a volunteer for the purpose stated by the Court in relation to the undue influence claim. The unconscionable conduct and undue influence claims also shared material facts. In plain English, the issues were connected in a way that made a simple costs split inappropriate on the facts found.
At [14], the Court confirmed the order requiring the respondent to pay the appellant's costs of both the appeal and first-instance proceeding. In plain English, the application to change the costs order was unsuccessful.
The reasoning is relevant to costs applications following litigation in which each side has had some success or failure, and one party asks the court to divide costs by claim or issue. The judgment is particularly pertinent where a party argues that its success on one claim makes it the overall successful party, even though the opposing party succeeded on other issues that determined the final relief [9]–[11].
It is also relevant where the proposed costs split depends on treating claims as distinct. The Court examined both legal distinctions and factual connections. Although the unconscionable conduct and undue influence claims were legally distinct, their shared factual matrix meant they were not clearly separable for this costs application [13]. The reasoning therefore highlights that separability is not necessarily established merely because causes of action have different legal labels.
The case also addresses an argument that a successful party advanced a point for the first time on appeal. Its treatment is tied to the procedural history here: the appeal Court had expressly found that the relevant claim was advanced at first instance [4]–[6]. The judgment does not establish that every alleged new point can be disregarded in a costs application. Its conclusion depended on the earlier finding in this case.
Finally, the decision may be relevant where a party relies on the order or description of claims, such as “primary” and “alternative”, to say that it was successful overall. The Court said that ordering and labels were not the test. The analysis focused on the proceeding as a whole and on the substantive outcome [9]–[10].
The judgment is dated 16 December 2024 and the supplied reasons do not identify any later court decisions applying, distinguishing, or otherwise treating Wu v Wu (No 3). No claim about subsequent treatment can therefore be made from this source.
The decision itself refers to earlier authorities on costs. It cites Oshlack v Richmond River Council for the breadth and judicial limits of the costs discretion [8(b)], and EMI Songs, Latoudis and Foots for the compensatory purpose of costs and the ordinary rule that costs follow the event [8(c)–(d)]. It cites Kone Elevators Pty Ltd v Shipton on the ordinary rule [8(d)], and Elite Protective Personnel Pty Ltd v Salmon (No 2) and Clarkson Williams Partners Pty Ltd v Vaughan (No 2) on the treatment of multiple issues and the interests of justice [8(e)–(g)]. Gray v Richards (No 2) is cited for the broad evaluative nature of the costs judgment [8(g)].
The Court also relied on its own prior decisions in the same litigation. It referred to Wu for its finding that the successful claim had been advanced at first instance and for the finding of error concerning unconscionable conduct [6], [13]. It referred to Wu (No 2) for the fact that unconscionable conduct did not need to be decided [13]. Those references explain the procedural foundation for the present costs decision; they are not evidence of later judicial treatment of this judgment.
The judgment resolves the respondent's application on the facts and procedural history before it. It does not set out a numerical method for deciding when an issue is sufficiently “dominant” or “separable” to justify apportionment. It states the general threshold and applies it to the four issues in this proceeding [8(f), 9–13].
Nor does it determine how the costs discretion should be exercised in every case where a party succeeds on one cause of action and fails on another. The Court expressly recognises that apportionment may be available and may be appropriate in some cases [11]. Its conclusion here is that the relevant issues were not clearly separable or dominant, considering their role in the final relief and their factual overlap [10]–[13].
The reasons do not revisit the merits of the underlying equitable claims in detail. They rely on the earlier appeal judgments for the findings that the appellant succeeded on undue influence and laches, that the unconscionable conduct issue was unnecessary to decide, and that error had been established concerning that claim [10], [13]. Those matters should therefore be understood through the present judgment's references to Wu and Wu (No 2), rather than supplemented with unsupported assumptions.
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Wu v Wu (No 3) Citation: [2024] ACTCA 35 Hearing Date: On the papers Decision Date: 16 December 2024 Before: Mossop, Baker & McWilliam JJ Decision: (1) The costs order made on 14 November 2024 is confirmed, with the respondent to pay the appellant’s costs of the appeal and of the proceedings at first instance. Catchwords: COSTS – costs on appeal and at first instance – where appeal allowed – application to vary costs order – whether appellant succeeded on point not argued at first instance – whether respondent substantially successful on appeal Legislation Cited: Court Procedures Rules 2006 (ACT) rr 1705, 1721(1), 5001 Cases Cited: Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52 Gray v Richards (No 2) [2014] HCA 47; 89 ALJR 113 Kone Elevators Pty Ltd v Shipton [2021] ACTCA 33 Latoudis v Casey (1990) 170 CLR 534 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Wu v Wu [2024] ACTCA 8 Wu v Wu (No 2) [2024] ACTCA 29 Parties: Chin-Sheng Wu (Appellant) Angela Chien-Kuang Wu (Respondent) Representation: Counsel D Moujalli (Appellant) M Hassall (Respondent) Solicitors Thomson Geer (Appellant) KJB Law (Respondent) File Number: ACTCA 7 of 2023 Decision Under Appeal: Court: ACT Supreme Court Before: Loukas-Karlsson J Date of Decision: 23 December 2022 Case Title: Wu v Wu Citation: [2022] ACTSC 360 The Court:
Two judgments have been delivered in this appeal proceeding. The first found that error at first instance had been established: Wu v Wu [2024] ACTCA 8 (Wu). The second dealt with the consequences of the findings of this Court: Wu v Wu (No 2) [2024] ACTCA 29 (Wu (No 2)).
One of the orders made in Wu (No 2) was that the respondent pay the appellant’s costs of the appeal and of the proceeding at first instance.
The respondent has applied to vary that order, seeking that the appellant pay the costs of the trial and the respondent pay the costs of the appeal. Alternatively, the respondent seeks that each party pay their own costs of the trial and of the appeal. The appellant opposes the application.
The basis for the respondent’s application on costs was that the appellant succeeded on a point not run below. In written submissions, the respondent relied in part on a concession made by the appellant during oral argument on the appeal which, following receipt of supplementary submissions on the appeal from each party, was not accepted by the Court, as explained at length in Wu at [78]-[104].
The respondent’s submission fails to appreciate that while parties may be bound by the way in which a case is conducted, the Court is not bound by what a counsel says on appeal about how the case was conducted, even if that submission is made against interest.
The entire foundation for the respondent’s application to vary the costs order was contrary to the express findings of the Court in Wu that the claim on which the appellant succeeded was advanced at first instance, notwithstanding the respondent (and the primary judge) viewed that aspect of the case differently, which the Court found to have been in error. Accordingly, it does not provide a reason to depart from the costs order made on appeal.
In reply submissions, the respondent argued further that the appellant’s “primary claim” at trial was a common law claim in debt, which was wholly unsuccessful, and that the claims in equity were “alternative” claims. That led to a submission that the respondent was ultimately the successful party at first instance.
That is a flawed approach to the exercise of the discretion on costs. To explain why, it is helpful to remind the parties of some general costs principles: (a) The starting point is that costs are discretionary, pursuant to r 1721(1) of the Court Procedures Rules 2006 (ACT) (Rules), which applies to civil appeal proceedings by virtue of r 5001. (b) The discretion is a very wide one, though it must be exercised judicially, in accordance with established principle and the statutory context: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [35], [65]. (c) The fundamental purpose of the discretion is to compensate the successful party, not to punish the unsuccessful party: EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92 at [9]; Latoudis v Casey (1990) 170 CLR 534 (Latoudis) at 567; Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52 (Foots) at [34]. (d) That principle has been described as the “ordinary rule” that “costs follow the event”: Kone Elevators Pty Ltd v Shipton [2021] ACTCA 33 at [294]. The event is determined by reference to the outcome of the matter in substance: Latoudis at 568; Foots at [34]. (e) Where there are multiple issues in proceedings, the Court generally does not differentiate between those on which the party succeeded or failed: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 (Elite) at [6], cited (albeit indirectly) in Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 (Clarkson) at [10]. (f) Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Elite at [6]. (g) Fairness is the touchstone. The result should be fair having regard to the particular facts and circumstances of the proceeding. “Ultimately, the Court is required to determine the appropriate order in the interests of justice”: Clarkson at [12]. In other words, the Court makes a “broad evaluative judgment of what justice requires”: Gray v Richards (No 2) [2014] HCA 47; 89 ALJR 113 at [2].
Once those principles are understood, it is plain that whether a claim is pleaded and determined first, or in alternative, is not the test. The Court views the proceeding as a whole. In this case, insofar as the respondent was concerned, there were four issues: (1) a debt claim; (2) a claim in equity based on unconscionable conduct; (3) a claim in equity based on undue influence; and (4) a defence of laches in answer to each of the equitable claims.
The appellant failed on the first issue. The second issue was not necessary to decide. The appellant succeeded in respect of the third and fourth issues, which were determinative of the outcome and the grant of final relief.
Although it is well-established that where a plaintiff succeeds on one cause of action but fails on another, apportionment is available and may be appropriate (see also r 1705 of the Rules), in this case, there was no one clear issue that was either clearly severable or dominant.
To the contrary, the fact that the respondent succeeded in defending the debt claim meant that she was, at law, a volunteer and could not resist the undue influence claim extending to her interest in the property in question in these proceedings.
In respect of the unconscionable conduct claim, error at first instance was established on appeal (Wu at [121]). Ultimately, it was unnecessary to decide the claim (Wu (No 2) at [59]). However, many of the facts material to the claim also overlapped with those relevant to the undue influence claim. Thus, although the unconscionable conduct and undue influence claims were legally distinct claims, due to the common factual matrix, the issues were not clearly separable.
There being no basis to depart from the order previously made, the Court makes the following order: (1) The costs order made on 14 November 2024 is confirmed, with the respondent to pay the appellant’s costs of the appeal and of the proceedings at first instance.
I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date:
Wu
Wu
(1990) 170 CLR 534
The costs order made on 14 November 2024 was confirmed, requiring the respondent to pay the appellant’s costs of the appeal and the proceedings at first instance.