McInnes v Rheem Australia Pty Limited

McInnes (the applicant) sought leave to appeal a costs order made by the primary judge in proceedings against Rheem Australia Pty Limited (the respondent). The respondent was the successful party overall, but the primary judge had apportioned costs, ordering that the respondent recover its costs up to a date shortly before the hearing, with no order for costs thereafter as between the respondent and the applicant. The applicant contended that this exercise of discretion miscarried.

The central legal issue before the Court of Appeal was whether the primary judge erred in their exercise of discretion regarding the costs order, specifically whether the usual order for costs should have been displaced. The applicant also sought to raise a new costs argument on appeal, which was distinct from the arguments presented at first instance.

The Court of Appeal considered the principles governing appeals against costs orders, noting that leave to appeal is generally only granted where there is a question of principle or general public importance, or where there is an injustice that is more than merely arguable. The Court found that the applicant's attempt to raise a new argument on appeal was inimical to the interests of justice, particularly as the reasonableness of the applicant's conduct of the proceedings had not been relied upon below. The Court concluded that there was no failure to consider a material consideration and that the applicant had not demonstrated an injustice that warranted granting leave to appeal.

The summons seeking leave to appeal was dismissed, and the applicant was ordered to pay the respondent's costs.