Background
Antai Solar Australia Pty Ltd appealed orders made by the Supreme Court at Brisbane on 4 February 2026 concerning its claim against the respondents. On 4 September 2026, the Court of Appeal allowed the appeal and invited submissions on the costs of both the first-instance proceeding and the appeal.
After the primary judgment, the primary judge had made a costs order by consent on 22 June 2026. The order required Antai Solar to pay specified respondents’ costs, largely on an indemnity basis. Antai Solar did not separately appeal that costs order, although its notice of appeal sought costs below on the basis that it succeeded on the merits.
The Court’s Holding
The Court held that it had power under r 766(1)(a) of the Uniform Civil Procedure Rules 1999 (Qld) to vary the first-instance costs order. But it declined to do so because the order had been made by consent and Antai Solar had shown no particular reason to disturb it.
For the appeal, the Court found that Antai Solar had achieved substantial success by having substantial parts of its claim reinstated against significant respondents. That success did not endorse the existing pleading: amendment was necessary, and the appeal succeeded because it was not plain and clear that the pleading defects could not be cured. The respondents were ordered to pay 50 per cent of Antai Solar’s appeal costs, including costs of the notice of contention.
Key Takeaways
- An appellate court may have power to vary a costs order below, but a consent costs order will not be disturbed without a particular reason.
- Substantial but incomplete appellate success can justify a partial costs order.
- Reinstatement of pleading allegations does not mean the pleading is adequate; amendment may still be required.
Why It Matters
The decision distinguishes between the appellate consequences of success on the merits and the separate question whether an earlier consent costs order should be reopened. Parties seeking to displace a consent costs order need a reason beyond a later change in the merits outcome.
It also illustrates the Court’s willingness to award only a proportion of appeal costs where the appellant succeeds substantially but its pleading remains deficient and requires amendment.