Real Estate Property Management Pty Ltd v WaterCorp Investments Pty Ltd

Real Estate Property Management Pty Ltd (the plaintiff) brought proceedings against WaterCorp Investments Pty Ltd (the defendant). The plaintiff was successful at first instance, but only on one of the issues raised by its claim, while the defendant succeeded on the majority of issues. The plaintiff sought leave to appeal against the costs orders made against it. The appeal was heard by Basten and White JJA.

The primary legal issue before the Court of Appeal was whether the primary judge had erred in the exercise of their discretion when making the costs orders. Specifically, the court considered whether the issues on which the plaintiff had failed were dominant or separable, whether the unmeritorious claims raised by the plaintiff had materially increased the costs, and whether the plaintiff's joinder to proceedings between other parties and subsequent award of costs in respect of those proceedings had been correctly assessed.

The Court of Appeal found that any error in the exercise of discretion by the primary judge was not more than merely arguable. The court noted that the issues on which the plaintiff failed were not considered dominant or separable, and that the unmeritorious claims had not materially increased the costs. Furthermore, the court acknowledged that the costs of an appeal on costs would be significant.

Consequently, the Court of Appeal ordered that the time for filing the application for leave to appeal be extended to the date of filing the summons seeking leave to appeal, and that the summons seeking leave to appeal be dismissed with costs.