Facts
A. AG (contractor, plaintiff, respondent) sued B. (client, defendant, appellant) for payment of additional contract fees. The District Court of Zurich partially upheld the claim, whereupon the plaintiff filed an appeal. The Cantonal Court of Zurich dismissed the appeal without calling upon the defendant to file a response to the appeal. The Federal Supreme Court set aside the judgment of the Cantonal Court and remanded the case for a new hearing.
After the proceedings were resumed, the defendant filed a response to the appeal and filed a cross-appeal. The plaintiff later withdrew its appeal, whereupon the Cantonal Court struck the case from the docket and ordered the plaintiff to pay the defendant a party indemnity for the appeal proceedings. However, the court did not award the defendant any additional compensation for its cross-appeal.
Considerations
The Federal Supreme Court decided that, as a general rule, the appellant who filed the main appeal must reimburse the cross-appellant for the costs of the cross-appeal if the latter becomes moot due to the withdrawal of the main appeal. This follows from the principles of cost allocation according to the outcome of the proceedings under Art. 106 para. 1 CPC.
However, the court may deviate from this principle under Art. 107 para. 1 lit. e CPC if the circumstances of the…