Mees v Kemp (No 2)

Mees v Kemp (No 2) involved a dispute between the applicant, Mees, and the first respondent, Kemp, before the court. The primary issue was whether Mees should be required to pay Kemp’s costs, following Mees’s unsuccessful application. Mees argued he had acted reasonably to resolve the matter without litigation and conducted the hearing efficiently. The court considered the principles governing the discretion to award costs, including the general rule that a successful party is entitled to costs unless special circumstances warrant otherwise.

The court reviewed the balance of considerations, referencing the joint judgment in Ruddock v Vadarlis (No 2). The judgment highlighted the compensatory principle and alternative rationales for awarding costs, acknowledging that the rule of costs following the event might lead to unfairness in close or difficult cases without obvious fault by the losing party. This principle was crucial in assessing Mees's responsibility for costs. The court balanced Mees’s efforts to resolve the matter without litigation against the need to fairly apportion costs based on the nature of the dispute and the conduct of the parties.

In its decision, the court determined that Mees should pay fifty per cent of Kemp’s costs for the substantive application. This decision reflected the finely balanced considerations and the discretionary nature of the court’s power to award costs. The court refrained from making any order regarding costs in relation to the preparation of written contentions.

The court's order required Mees to pay fifty per cent of Kemp’s costs associated with the substantive application, with costs to be taxed if the parties could not agree on the amount. There was no order concerning costs related to the preparation of written contentions.