Goldus Pty Ltd v Australian Mining Pty Ltd (No 2)

This matter concerned an application for costs following an unsuccessful appeal by Goldus Pty Ltd (the appellant) against Australian Mining Pty Ltd (the first respondent) and Australian Corporate Holdings Pty Ltd (the second respondent). The parties had been joint venturers, and the dispute arose from the second respondent's sale of its shareholding in the first respondent to a third party. The appellant's claim for breach of and unlawful interference with the joint venture agreement was dismissed at trial. The appellant sought an extension of time to appeal, which was refused by the Full Court of the Supreme Court of South Australia, consequently dismissing the appeal.

The primary legal issue before the Full Court was the appropriate order for costs of the appeal, given the appellant's unsuccessful attempt to appeal and the respondents' separate representation. The appellant sought to limit its liability for costs, proposing either to pay only the first respondent's costs or 50 per cent of each respondent's costs. The respondents sought their full costs of the appeal. The Court was required to exercise its discretion regarding costs, considering the general rule that costs follow the event, but also the specific circumstances of the representation and the alignment of interests between the respondents.

The Court reasoned that while separate representation for the respondents was appropriate, the extent of their active participation and the duplication of legal resources were excessive. Although the interests of the first and second respondents diverged significantly after the sale of shares, the Court found that the collective representation by four counsel (two senior and two junior) was unnecessary due to the substantial commonality in their submissions and the strong representation of the first respondent. The Court concluded that a lesser degree of resourcing for the second respondent would have been sufficient, particularly given the first respondent's robust legal team.

Consequently, the Court ordered that the first respondent should have its costs of the appeal, taxed on a party and party basis. For the second respondent, the Court ordered that it recover 50 per cent of its costs of the appeal, also to be taxed on a party and party basis. This reflected the Court's view that while separate representation was warranted, the level of resourcing and active participation by the second respondent was not entirely justified by the circumstances.