Lew Footwear Holdings Pty Ltd v Madden International Ltd (No 3)

Lew Footwear Holdings Pty Ltd sued Madden International Ltd in the Supreme Court of Victoria, seeking damages for breach of contract and associated claims. The dispute arose from an agreement between the parties concerning the sale and distribution of footwear. The court was required to address several legal issues, including whether the defendant was justified in making an application for costs, whether the plaintiff was ultimately successful, and the appropriateness of awarding costs that reflected the merits of the application before the final hearing. The court also needed to determine whether the certification of senior counsel’s appearance fee was above scale under the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

The court examined the circumstances under which the defendant made the application for costs. It found that the defendant was justified in making the application based on the information provided in the writ and statement of claim at the time. The court granted indulgence and scheduled a further hearing to assess the merits of the application before the final hearing. The court emphasised that the defendant's application was made in good faith and that the plaintiff had ultimately succeeded in the proceeding. As a result, the court awarded costs to the defendant, taking into account the merits of the application before the final hearing. Furthermore, the court addressed the issue of the senior counsel’s appearance fee, finding that the certification was appropriate under the relevant rules.

In its final orders, the court certified that the defendant's senior counsel's appearance fee was appropriately above scale, and it directed that costs be awarded to the defendant, reflecting the merits of the application before the final hearing. The court's decision underscored the importance of considering the totality of the proceeding when determining costs, particularly in cases where the defendant is ultimately successful but the application for costs was made at an earlier stage of the litigation.