Mendonca v Tonna

The applicant, Mendonca, sought leave to appeal and appealed against orders made by a primary judge concerning costs. The respondents were Tonna and others. The dispute centred on the primary judge's refusal to make a set-off costs order and other costs orders made in favour of individuals who were not parties to the appeal.

The court was required to determine whether to grant leave to appeal against the primary judge's discretionary costs orders. Specifically, the court considered whether there was a point of principle, public importance, or a reasonably clear injustice that warranted granting leave, particularly in relation to the alleged error in not making a set-off costs order. The court also had to consider the competence of the appeal itself, given that it involved challenges to orders made in favour of non-parties.

Kirk JA and Price AJA held that leave to appeal is not readily granted when challenging a discretionary exercise of power regarding costs. They reasoned that the primary judge's decision was substantially founded on facts before that judge, and the situation had since evolved. Furthermore, it remained open to the applicant to pursue any outstanding amounts separately. The court also noted that the applicant's complaint involved challenging orders made in favour of persons not party to the appeal proceedings, and found no point of principle, public importance, or reasonably clear injustice that went beyond something merely arguable. Consequently, the application for leave to appeal was dismissed, and the appeal was dismissed as incompetent.

In matter number 2025/039861, the application for leave to appeal was dismissed, and the applicant was ordered to pay the respondents’ costs. In matter number 2024/332024, so much of the applicant’s amended motion as sought an extension of time was dismissed, the appeal was dismissed as incompetent, and the appellant was ordered to pay the respondents’ costs.