Capic v Ford Motor Company of Australia Pty Ltd (Costs of Supplementary Common Questions)

This judgment sits inside a much larger Federal Court class action, but the reasons themselves are narrow. The Court was not revisiting the whole dispute between the class and Ford. It was deciding a follow-up costs question after an earlier hearing on supplementary common questions and other issues.

Justice Perram explained that the earlier hearing had been a necessary step before what he described as the final hearing on the quantum of damages to which the class was entitled. That earlier hearing took place over two days on 30 and 31 October 2025. The named applicant remained Biljana Capic, but the Court noted that her own claims had already been resolved. In substance, the remaining issues concerned the class as a whole.

That procedural point matters. In representative proceedings, the named applicant may remain on the record even after their personal position has been dealt with, while the litigation continues for group members. The Court therefore referred to the moving party as the class rather than the applicant because that was substantively correct.

The present judgment then asked two practical questions. First, who should pay the costs of the October 2025 hearing? Secondly, if the class got a costs order, should those costs be taxed or assessed forthwith instead of waiting until the end of the proceeding?

Because the reasons are short, they do not provide a full account of the underlying product, conduct or consumer allegations. This page should therefore be read as a focused explainer on the costs ruling, not as a complete account of the broader class action.

The Court identified three groups of issues that had been argued at the October 2025 hearing. First, there was the correct construction of the term 'affected person' in section 2 of Schedule 2 to the Competition and Consumer Act 2010, including what the Court called the 'successor in title' issue and the 'multiple guarantees' issue. Secondly, the Court had to decide whether crystallisation orders should be made under section 33Z(1)(e) or (g) of the Federal Court Act 1976. Thirdly, it had to determine whether a defence under section 273 of the Australian Consumer Law was available in respect of some group members.

Even without the full factual background, those issue descriptions show that the hearing was not a minor administrative step. Questions about who qualifies as an affected person, whether rights or positions extend to successors in title, whether multiple guarantees matter, whether crystallisation orders should be made, and whether a statutory defence is available can all affect the shape and value of a class action.

For business readers, that is the first practical lesson. A hearing may be labelled supplementary or procedural, but it can still involve commercially significant questions. In large litigation, these hearings can influence damages methodology, class composition, available defences and settlement leverage. They also generate their own costs consequences.

The immediate legal issue was not whether Ford had contravened the Australian Consumer Law. The Court had to decide how ordinary costs principles should apply after a mixed-result hearing where one side had still been substantially successful overall.

The class sought its costs of the October 2025 hearing. Ford argued for a different approach, contending in substance that costs should be apportioned because the class had not succeeded on every point. The Court therefore had to decide whether this was the kind of case where each side had achieved enough success that they should bear their own costs, or whether the ordinary position that costs follow the event should apply.

The Court also had to deal with a separate application for costs payable forthwith. Under rule 40.13 of the Federal Court Rules 2011, the ordinary rule is that costs are not taxed or assessed until the proceeding is determined. So the question was whether the interests of justice justified departing from that ordinary rule.

These are procedural questions, but they are commercially important. A business can lose a costs fight even after winning one issue if the Court sees the other side as the substantial winner overall. And even if a business obtains a costs order, it may still have to wait for actual assessment and recovery.

Justice Perram held that the class prevailed on all issues except the 'multiple guarantees' aspect of the first issue. On that footing, this was not a case where each party had achieved a substantial measure of success such that each should bear its own costs. The Court referred to Ezy-Fit Engineering Group Pty Limited v Microm Nominees Pty Limited (No 4) on that point.

The Court also referred to authority from the Full Court in Australian Competition and Consumer Commission v Pacific National Pty Ltd (No 2), which said that the fact a successful party did not win all of its arguments does not necessarily make issue-by-issue apportionment appropriate. That is an important practical point. Courts do not automatically dissect every hearing into separate wins and losses for costs purposes.

Because the class had been substantially successful, the Court found there was insufficient justification to depart from the ordinary position that costs follow the event. Ford's attempt to have costs apportioned was rejected. The Court ordered that Ford pay the applicant's costs of the hearing on 30 to 31 October 2025.

This outcome should be read carefully. It does not mean the class won every issue in the broader proceeding. It means that, for this particular hearing, the class won enough of the real contest that it should receive its costs.

The class also asked for an order that its costs of the October 2025 hearing be paid forthwith. The Court refused that request.

Justice Perram started with the ordinary rule in rule 40.13 of the Federal Court Rules 2011, which is that costs are not taxed or assessed until the proceeding is determined. The Court said the issue was whether the interests of justice sufficiently outweighed the policy considerations behind that rule to justify a departure from it. The reasons cited earlier authority, including Capic v Ford Motor Company of Australia Limited (Costs Forthwith) [2019] FCA 1065 and Axent Holdings Pty Ltd v Compusign Australia Pty Ltd (No 3).

The class submitted that the litigation had been going for a decade and that none of the class members had seen any money despite their substantive victory on the central mechanical issue several years earlier. The judge said he was sympathetic to that concern. But sympathy was not enough. The class action was funded, and without more information about the funding arrangements the Court was not persuaded that ordering the costs to be taxed forthwith would be likely to result in any funds being paid to class members.

That practical reasoning is important for businesses. A court may ask not only whether delay feels unfair, but also whether an immediate costs order will make a real difference in practice. If funding arrangements, insurance or indemnities sit between the costs order and the ultimate recipient, the Court may want concrete evidence before departing from the ordinary rule.

The safest way to read this case is as a litigation-costs decision with a narrow procedural focus. It is useful for understanding how the Federal Court may approach costs after a substantial intermediate hearing, but it is not a reliable stand-alone summary of the overall Capic class action.

For businesses in litigation, the first message is that intermediate hearings matter. A hearing on statutory construction, class-related questions or procedural orders can still be treated as a significant event for costs purposes. If the other side wins the hearing in substance, you may be ordered to pay their costs even if you succeeded on one issue.

The second message is that courts may resist issue-by-issue apportionment unless there is a strong reason to depart from the ordinary approach. Businesses sometimes assume that winning one argument will reduce or neutralise costs exposure. This case shows that the Court may instead look at who was substantially successful overall.

The third message is about timing. A costs order is not the same thing as immediate payment. The Court may leave assessment until the end of the proceeding unless there is a persuasive justice-based reason to do otherwise. If your business is funded, insured or indemnified, that structure may become relevant to whether any special order is worthwhile or appropriate.

Finally, because this judgment does not set out the underlying dispute in detail, anyone trying to understand the broader legal and commercial significance of the Ford proceeding should also review the earlier substantive judgment referred to by the Court. Without that, you are only seeing the costs aftermath of one hearing, not the whole case.

The judgment was delivered by Perram J in the Federal Court of Australia on 27 February 2026 in proceeding NSD 724 of 2016. It was determined on the papers, with the date of last submissions recorded as 19 February 2026. The hearing to which the costs order related took place on 30 and 31 October 2025.

The Court's formal order was short: the respondent was to pay the applicant's costs of the hearing on 30 to 31 October 2025. There was no order that those costs be paid forthwith. The reasons themselves run to seven numbered paragraphs, which reinforces how confined the decision is.

Because the reasons are so brief, they should be used carefully. They confirm the issues argued at the earlier hearing, the Court's view that the class was substantially successful, and the refusal to depart from the ordinary rule on timing of costs assessment. They do not provide a full factual history, a detailed account of the underlying claims, or a complete explanation of the earlier substantive rulings.

If you are using this case for legal or commercial analysis, the sensible next step is to read it together with the earlier judgment on supplementary common questions and other issues. That is the decision that dealt with the substantive and procedural questions which generated the costs dispute.