Melrob Investments Pty Ltd & Ors v Blong Ume Nominees Pty Ltd & Ors (No 2)

This matter concerned an appeal and application to vary costs orders in proceedings that commenced in 2013. The parties involved were Melrob Investments Pty Ltd and others (appellants) and Blong Ume Nominees Pty Ltd and others (respondents). The dispute had a complex procedural history, including an initial dismissal of the claim by Parker J in 2017, a subsequent appeal to the Full Court in 2019 which remitted specific issues for determination, and a judgment by Kourakis CJ on those remitted issues on 3 March 2021. The core of the present application before the Full Court of South Australia (Lovell, Bleby and David JJ) was an application by the appellants to vary costs orders previously made.

The legal issues before the Full Court were whether to grant the appellants leave to apply to vary the Court's orders of 8 April 2022, and if so, whether to vary those orders, specifically concerning the costs of the trial on the remitted issues heard by Kourakis CJ. The appellants sought to have the costs of that trial apportioned, arguing that the respondents had failed on certain issues. The Court also had to consider the costs of the interlocutory application itself.

The Court reasoned that in all the circumstances, particularly given the delay and the imperative of finality, the interests of justice did not favour varying the judgment so as to interfere with the costs order of 21 May 2021, which had been made by Kourakis CJ regarding the costs of the trial before Parker J. This order had directed the appellants to pay the respondents' costs of that trial. The Court granted the appellants leave to apply to vary the orders of 8 April 2022, and varied those orders to direct that the respondents pay the appellants' costs of the trial on the remitted issues heard by Kourakis CJ. However, the Court declined to vary the orders further, stating that the interlocutory application should not have been necessary and that it was not an appropriate matter for an apportionment of costs by issue. The appellants were ordered to pay the respondents' costs of the interlocutory application.