It is not a necessary condition of the power to award such costs that a collateral purpose or some species of fraud be established. It is sufficient, in my opinion, to enliven the discretion to award such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case.[4]

1. The application for leave to appeal in this case was manifestly hopeless. While I accept that the applicant believes in the strength of his cause, on any proper consideration of his application for leave to appeal, it should have been seen as devoid of merit. While I have taken into account what was said by this Court in Macedon Ranges Shire Council v Thompson,[5] and the authorities referred to in that decision, I have, nevertheless, come to the view that the respondents should have their costs of and incidental to the application for leave to appeal on the indemnity basis. The application made to the primary judge was meritless,[6] as was the application for leave to appeal to this Court.
2. That said, I do not propose to make any order in relation to the costs reserved by Tsalamandris J on 1 May 2025. Those costs were not reserved to this Court. They were reserved in the Trial Division and should remain reserved to a judge of that division seized of the primary proceeding[7] (most likely the judge who makes final orders disposing of the proceeding in the Trial Division).
3. Finally, the applicant has not established any basis upon which any order for costs made against him by this Court should be stayed. While it is highly unlikely that he would be required to pay any costs ordered by this Court prior to the resolution of his special leave application (because those costs will not likely be quantified prior to the determination of the special leave application), nothing in the applicant's material justifies the staying of any costs order made against him in this Court. As a first condition for a stay of any costs order pending the determination of a special leave application, there must be a 'substantial prospect that special leave to appeal will be granted'.[8] Without pre‑empting the view that may be expressed by the High Court,[9] I am not persuaded that there is any real prospect (let alone a 'substantial prospect') that special leave to appeal will be granted in this case.

1. There will be an order that the applicant pay the respondents' costs of and incidental to the application for leave to appeal, such costs to be taxed, in default of agreement, on the indemnity basis.

[1] Biddle v Miele Australia Pty Ltd [2025] VSCA 244 ('Leave Reasons').

[2] Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, 401.

[4] [1993] FCA 70; (1993) 46 IR 301, 307; [1993] FCA 70.

[5] [2009] VSCA 209, [16]-[18] and [25].

[7] That is, the appeal created by the applicant's filing of a notice of appeal on 19 August 2024: see Leave Reasons, [3].

[8] Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681, 685 (Brennan J) ('Jennings'); Mercanti v Mercanti [2017] HCA 1; (2017) 340 ALR 225, 227 [11] (Kiefel J); [2017] HCA 1.

[9] Jennings [1986] HCA 84; (1986) 161 CLR 681, 684 (Brennan J).