Thurin v Krongold Constructions (Aust) Pty Ltd [No 2]

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0051

DAVID THURIN

First Applicant

and

LISA THURIN

Second Applicant

v

KRONGOLD CONSTRUCTIONS (AUST) PTY LTD

(ACN 103 839 49) (AND OTHERS ACCORDING TO THE ATTACHED SCHEDULE) [NO 2]

Respondents

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JUDGES:	McLEISH, NIALL and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	18 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 252

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PRACTICE AND PROCEDURE – Costs – Referral of questions of law by Victorian Civil and Administrative Tribunal – Parties enjoyed mixed success on referral – Whether referral akin to interlocutory application – Justice lies in parties bearing own costs – Practical issues with costs being in cause of VCAT proceeding – General public importance in answering questions of law – No order as to costs.

Supreme Court Act 1986, s 24(1).

Major Engineering Pty Ltd v Helios Electroheat Pty Ltd [No 2] [2006] VSCA 114; Swindells v Victoria [2016] VSCA 77; Chen v Chan [No 2] [2009] VSCA 233, referred to.

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Counsel
Applicants:		Mr MG Roberts KC with Dr COH Parkinson KC and Mr N Guenther
First Respondent:		Mr JAF Twigg KC with Dr K Weston-Scheuber, Mr M Hosking and Mr CFE Dawlings
Second Respondent		Mr AE Klotz
Third Respondent		Mr KJ Naish
Attorney-General of the Commonwealth		Mr G Hill SC with Ms S Zeleznikow
Attorney-General for the State of Victoria		Ms RJ Orr KC with Mr OM Ciolek and Mr L Chircop
Solicitors
Applicants:	Herbert Smith Freehills
First Respondent:	Krongold Group
Second Respondent	Meridian Lawyers
Third Respondent	DLA Piper
Attorney-General of the Commonwealth	Australian Government Solicitor
Attorney-General for the State of Victoria	Victorian Government Solicitor’s Office

MCLEISH JA
NIALL JA
WALKER JA:

1. On 20 October 2022, following a referral of six questions of law to this Court from the Victorian Civil and Administrative Tribunal (‘VCAT’), we published our reasons in Thurin v Krongold Constructions (Aust) Pty Ltd.[1] We made substantive orders but reserved our decision on costs. In our reasons we noted that our inclination was that, because each party had had a measure of success, and because the ultimate fate of any referral application under s 77 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) remained unknown, there should be no order as to costs.[2]

   [1][2022] VSCA 226 (‘Reasons’). These reasons concerning the costs of the proceeding in this Court assume familiarity with the Reasons.

   [2]Reasons, [166].

2. At the request of the parties, orders were made for the filing of submissions on costs. In summary, those submissions were as follows:

   (a)the applicants (‘the Thurins’) contended that costs should be costs in the cause of the VCAT proceeding or, alternatively, that costs should be reserved until the outcome of the VCAT proceeding is known;

   (b)Krongold Constructions (Aust) Pty Ltd (‘Krongold’) submitted that there should be no order as to costs;

   (c)Swan Hardware & Staff Pty Ltd (‘Swan Hardware’) sought an order that Krongold pay its costs of the referral;…