CC United Developments Pty Ltd v Wing Da Pty Ltd

CC United Developments Pty Ltd (the applicant) sought leave to appeal from a decision of the primary judge that awarded indemnity costs against it in favour of Wing Da Pty Ltd (the respondent). The dispute concerned a caveat lodged by the respondent to protect its right to renew a lease, and a threat by the applicant to issue a lapsing notice in respect of that caveat. The proceedings were resolved at first instance, and the primary judge ordered that the applicant pay the respondent's costs on an indemnity basis.

The central legal issue before the Court of Appeal was whether the primary judge erred in exercising their discretion to award indemnity costs against the applicant. The applicant contended that the circumstances did not warrant such an order, which is an exception to the usual rule of awarding costs on the ordinary (party/party) basis.

Basten and White JJA dismissed the application for leave to appeal. Their Honours found no error in the primary judge's exercise of discretion. While not detailing the specific reasons for the primary judge's decision to award indemnity costs, the Court of Appeal indicated that the conduct of the applicant in the proceedings, or in relation to the dispute, justified the departure from the ordinary costs rule. The court applied the established principles governing the award of indemnity costs, which require a higher threshold of justification than ordinary costs, and concluded that this threshold had been met.

Consequently, the application for leave to appeal was dismissed. The applicant was ordered to pay the respondent's costs of the appeal, to be assessed on the ordinary basis.