Lowbeer v De Varda and Lowbeer v Tov-Lev

In the matter of *Lowbeer v De Varda* and *Lowbeer v Tov-Lev*, the Supreme Court of Victoria was asked to determine whether a party who had been granted an interlocutory injunction restraining the other parties from dealing with certain assets was entitled to an order for the costs of the interlocutory proceedings. The applicant, Ms Lowbeer, sought to recover her costs from the respondents, Mr De Varda and Mr Tov-Lev, who were the defendants in the proceedings.

The central legal issue before the Court was whether the respondents should be ordered to pay the applicant's costs of the interlocutory injunction application, notwithstanding that the application had been settled by agreement between the parties before a final hearing. Specifically, the Court had to consider the principles governing the award of costs in circumstances where an interlocutory application is resolved by consent, and whether the conduct of the parties in the lead-up to and during the settlement negotiations warranted a departure from the usual rule that costs follow the event.

Judge Manousaridis reasoned that while the general rule is that costs follow the event, this principle is not absolute, particularly in interlocutory matters that are settled by agreement. The Court considered the conduct of the parties, including the respondents' initial opposition to the injunction and their subsequent agreement to its terms, as well as the applicant's success in obtaining the injunction in the first place. The Court found that the applicant had established a sufficient case to warrant the grant of the injunction, and that the respondents' eventual agreement to the terms did not negate the necessity for the applicant to bring the application. The Court applied the principle that costs are a matter for the discretion of the court, to be exercised judicially, taking into account all relevant circumstances, including the conduct of the parties.

The Court ordered that the respondents pay the applicant's costs of the interlocutory injunction application, to be summarily assessed.