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

Thurin v Krongold Constructions (Aust) Pty Ltd [No 2] involved the applicant, Thurin, and the respondent, Krongold Constructions, in a dispute that was referred to the Court for questions of law. The Victorian Civil and Administrative Tribunal (VCAT) had referred questions of law to the Court, and the parties had mixed success in their submissions. The central issue before the Court was whether the referral of questions of law by VCAT was akin to an interlocutory application and, if so, whether the usual rule of costs in such cases applied. Additionally, the Court had to consider the public importance of resolving these questions of law and the practical issues surrounding costs in the context of the VCAT proceeding.

The Court examined the nature of the referral by VCAT and noted the mixed success of the parties on the referral. It considered the principles established in Major Engineering Pty Ltd v Helios Electroheat Pty Ltd [No 2], Swindells v Victoria, and Chen v Chan [No 2], which addressed the allocation of costs in interlocutory applications and referrals of questions of law. The Court concluded that the referral was not akin to an interlocutory application, and therefore, the usual rule of costs did not apply. The Court also highlighted the practical issues with costs being in the cause of the VCAT proceeding and the general public importance in answering the questions of law. Given these considerations, the Court decided not to make an order as to costs.

The Court's reasoning was grounded in the unique circumstances of the referral and the need to balance the parties' interests with the broader public interest. The Court recognised that while the referral had significant public importance, it did not fit neatly into the category of interlocutory applications where costs are typically awarded. Therefore, the Court exercised its discretion not to make an order as to costs, acknowledging the mixed success of the parties and the practical implications of such an order.

The final outcome was that no order was made as to costs, reflecting the Court's balanced approach to the matter. This decision underscores the importance of considering the unique aspects of each case when determining costs in referrals of questions of law.