Rasch Nominees Pty Ltd v Bartholomaeus

This matter concerned a cross-appeal brought by the first to fifth cross-appellants against a costs order made by a lower court. The appeal was heard by Gray, Sulan, and Stanley JJ of the Supreme Court of South Australia.

The primary legal issue before the Full Court was whether the trial judge had erred in exercising their discretion regarding costs, and consequently, whether the appellate court should intervene. Specifically, the court had to determine if permission to appeal on a question of costs should be granted, and if so, whether the trial judge's decision was demonstrably wrong or so unreasonable as to warrant substitution of the appellate court's own discretion.

The court applied the well-established principles governing appeals against the exercise of a general discretion, particularly in relation to costs. It was held that an appellate court will only interfere with such a discretion if there is clear error, as identified in *House v King*, or if the exercise of discretion was so unreasonable as to require the appellate court to substitute its own. It is insufficient for the appellate judges to believe they would have acted differently. The court noted that leave to appeal on costs generally requires an important question of principle, not merely the application of settled principles to specific facts.

The Full Court refused permission to cross-appeal and dismissed the cross-appeal. The court found that the material before the trial judge entitled him to exercise his discretion as he did, and no error of principle was identified. The orders made did not give rise to a substantial injustice, and the cross-appellants failed to demonstrate that the judge's exercise of discretion was so unreasonable or unjust as to require the appellate court to substitute its own.