Davaria Pty Limited v 7-Eleven Stores Pty Limited

Davaria Pty Limited sought leave to appeal from an interlocutory decision of the Federal Court in a proceeding against 7-Eleven Stores Pty Limited. The applicants filed their applications for leave to appeal before the reasons for the interlocutory decision were available. Upon receiving the reasons for the judgment, the applicants discontinued their applications for leave to appeal. The respondents sought an order that the applicants pay the costs of the application for leave to appeal.

The court was required to decide whether it should depart from the default position that a party who discontinues an application for leave to appeal is liable to pay the costs of the other parties. The court considered the relevant authorities and the circumstances of the case, including the fact that the applicants had discontinued their applications for leave to appeal after receiving the reasons for the interlocutory decision.

The court held that it was appropriate to depart from the default position and make an order that the costs of the application for leave to appeal be costs in the cause in the relevant underlying proceeding. The court noted that the applicants had discontinued their applications for leave to appeal promptly after receiving the reasons for the interlocutory decision, and that there were no exceptional circumstances that warranted a departure from the usual costs consequences of discontinuing an application for leave to appeal. The court also noted that the underlying proceeding was likely to be lengthy and costly, and that it was in the interests of justice to ensure that the costs of the application for leave to appeal did not unduly burden the applicants.

The court made an order that the costs of the application for leave to appeal dated 8 March 2021 be costs in the cause in the relevant underlying proceeding (namely, proceeding number VID 182 of 2018). The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.