High Court amends orders upon acknowledging it overlooked a footnote

• Dismiss the appeal and cross-appeal with costs 
• Uphold the trial judge’s result, specifically the rejection of the appellants’ request to recover litigation funding costs 
• Refrain from disturbing the trial judge’s costs apportionment 

On 24 December 2025, the appellants brought an application asking the High Court to recall its orders and issue amended orders to remit the cross-appeal’s aspect concerning the trial judge’s costs orders for the appeal court to determine. 

Application allowed

Allowing the application in the appellants’ favour, the High Court of Australia varied its 17 December 2025 orders. Their amended orders sought to: 

• Partly allow the appeal 
• Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales, made on 18 September 2024 
• Replace the prior orders with an order dismissing the appeal and cross-appeal with costs, except for the cross-appeal’s aspect addressing the trial costs 
• Make the respondent pay the appellants’ appeal costs 
• Remit the proceedings to the appeal court to determine the cross-appeal’s aspect regarding the trial costs 

Regardless of the accuracy of the footnote in the appellants’ written submissions, the High Court noted that the appellants maintained that the court should refer the outstanding trial costs issue to the appeal court if it reinstated the trial judge’s substantive orders. 

According to the High Court, if it had not overlooked the footnote, it would have remitted the trial costs issue to the appeal court. 

The High Court acknowledged that it could sparingly exercise its discretionary power to correct an error or omission in a judgment or order if doing so would serve the interests of justice. 

Here, the High Court identified the following factors that supported exercising its discretionary power to issue the appellants’ requested order to correct the error or omission: 

• The error or omission was plain or obvious, as the court had overlooked a matter 
• The appellants promptly filed an application 
• Formal entry had not perfected the relevant orders 
• The application did not aim to re-agitate arguments the court had already considered 
• The correction would not subject the respondent to a relevant disadvantage 

The High Court noted that it did not have the benefit of the costs submissions before the appeal court.