HOOPER -v- COCKLES PTY LTD [No 2] [2025] WASCA 157 (29 October 2025)

1. The plaintiffs sought that the defendants pay the plaintiffs' costs of and incidental to the plaintiffs' interlocutory application dated 25 November 2024, to be assessed on a party and party basis; and there otherwise be no order as to costs. 2. The defendants sought orders that:

(a) The plaintiffs pay the defendants' costs of and incidental to the plaintiffs' interlocutory application dated 25 November 2024, to be assessed on a party and party basis.
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> (b) The plaintiffs pay the defendants' costs of and incidental to the defendants' interlocutory application dated 18 December 2024, with an uplift to the scale allowance for the hourly rate allowable for a senior practitioner.
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> (c) The plaintiffs pay the defendants' costs of the costs applications, to be assessed on a party and party basis.

1. The primary judge gave oral reasons dealing with the costs issues on 17 June 2025. Her Honour made orders that:
   1. There be no order as to costs in relation to the plaintiffs' interlocutory application filed 25 November 2025.
   2. There be no order as to costs in relation to [the defendants'] interlocutory application filed 18 December 2024.
   3. There be no order as to costs in relation to the hearing of 10 April 2025.
   4. There be no orders as to costs in relation to each of the plaintiffs' and [the defendants'] application for costs.
2. After dealing with the background circumstances, the primary judge observed that the plaintiffs' interlocutory application dated 25 November 2024 was not determined on its merits. Her Honour then reasoned:

The fact that the plaintiffs' application was determined without a hearing on the merits deprives the court of determining who was the successful party, this being the factor that usually determines who ought to be awarded the costs of the application. I'm not required to determine the hypothetical application, especially where in this case there were complex factual matters that required determination. In my view, both parties acted reasonably in circumstances where they both held a reasonable belief as to the capacity, or lack thereof, of Philip.

The plaintiffs acted reasonably in making and prosecuting their application, and [the defendants] acted reasonably in defending and agreeing to provide undertakings to maintain the status quo pending final determination. Therefore, the appropriate order in those circumstances is that there should be no order as to costs in relation to the plaintiffs' application (ts 143 - 144).

1. The primary judge also considered that both parties acted reasonably in relation to the defendants' interlocutory application dated 18 December 2024 (ts 144). Her Honour stated:

It was reasonable for [the defendants] to make the application, and they ultimately were granted the orders they sought. However, I did not find then, and it would not be appropriate for me to find now, that the serious allegations made by [the defendants] against the plaintiffs were made out. In light of the allegations made against the plaintiffs, it was appropriate for the plaintiffs to oppose the defendants' application.

I did essentially grant the orders sought in the defendants' application, but that was to protect Philip's interests pending final resolution of the action. I did not determine the defendants' application on its merits. It was not appropriate to do so. Therefore, the appropriate costs order is no order as to costs (ts 144).

1. It followed that there should be no order as to the costs of the hearing on 10 April 2025; or as to the competing applications for costs (ts 144).

1. By their appeal notice filed 25 July 2025, the appellants seek to appeal from each of the primary judge's orders made 17 June 2025. However, on the papers there was some doubt as to the intended scope of the appeal. An amended appeal notice, filed 31 July 2025, excluded par 1 of the orders made 17 June 2025 from the orders being appealed from. Later, however, an appellant's case was filed that, by ground 1, claimed that the primary judge erred in law in making no order as to costs in respect of the plaintiffs' interlocutory application dated 25 November 2024. The orders wanted in the appellant's case also provided for the setting aside of par 1 of the orders made 17 June 2025.
2. Counsel for the appellants informed this court, at the hearing on 22 October 2025, that the appellants sought to challenge par 1 of the orders made 17 June 2025. The amendment to exclude par 1 of the costs orders from the orders appealed from was an inadvertent error. Accordingly, we evaluated the application for leave to appeal on the basis that the proposed appeal would challenge all of the primary judge's orders made 17 June 2025.
3. The appellants required an extension of time to appeal. The appeal was commenced 24 days out of time. The time for commencement, as limited by the relevant rules, was 1 July 2025 insofar as the costs orders were concerned with interlocutory applications: Supreme Court (Court of Appeal) Rules 2005 (WA) r 26(1). The appeal notice was not filed until 25 July 2025. The application for an extension of time was supported by affidavits sworn by solicitors acting for the appellants (an affidavit of Leo Yuanzhe Ren sworn on 24 July 2025 and an affidavit of Lisa Seonhee Kim sworn 21 October 2025). Neither affidavit adequately explained the delay in commencing the appeal. The appellants' solicitors were provided with a transcript of the primary judge's oral reasons on 25 June 2025. However, it was not until 18 July that Mei (the first appellant) provided instructions to commence an appeal. The second appellant did not provide instructions to commence the appeal until 22 July 2025. The third of the defendants - Wei Teo - did not provide instructions to appeal and so is joined to the appeal as the eighth respondent.
4. There are two grounds of appeal. They provide:
   1. The learned primary judge erred in law in making no order as to costs in respect of [the plaintiffs'] application for interlocutory injunctions made 25 November 2024, by considering only whether the parties had acted reasonably where the reason the application was dismissed would also finally determine the substantive application or overlooking that fact.
   2. The learned primary judge erred in law in making no order as to costs in respect of [the defendants'] application for permanent injunctions made 18 December 2023 (amended 23 December 2023), by considering only whether the parties had acted reasonably where the relief was not interlocutory but final or alternatively the conclusion that the plaintiffs had acted reasonably was plainly unjust.
5. The appellants required leave to appeal as the appeal was as to costs only: Supreme Court Act 1935 (WA) s 60(1)(f).
6. In support of leave to appeal, the appellants contended that the dismissal of the plaintiffs' interlocutory application was in substance a final determination of the whole proceeding. This was because, following the extra-curial steps taken by and on behalf of Philip in early April 2025 to resolve the composition of Cockles' board of directors, it was unlikely that there would be any further step in the substantive proceedings. In those circumstances the appellants complained that they would never be able to obtain an indemnity for their costs if leave to appeal was refused. The appellants also sought to make something of the circumstance that the appeal would not fragment or delay the substantive proceedings.
7. The appellants' submissions on the question of leave to appeal were misdirected. In an appeal as to costs only, an applicant seeking leave to appeal from an order denying him or her costs will never obtain an indemnity for those costs if leave to appeal is refused. This suggested criterion takes the question of leave to appeal nowhere. Nor is the absence of fragmentation or delay to the substantive proceedings a material consideration. The possibility that an interlocutory appeal may fragment or delay substantive proceedings is a factor favouring refusal of leave to appeal. But the absence of fragmentation or delay to the substantive proceedings cannot itself justify a grant of leave to appeal; it constitutes no more than the absence of a potential factor which might lead to the refusal of leave to appeal.

Applicable legal principles - leave to appeal from an order as to costs only

1. Leave to appeal from an order as to costs only should be granted if, in all of the circumstances, it is in the interests of justice that there be a grant of leave. In this context the factors that are commonly considered in evaluating the interests of justice include: (1) whether the costs decision was wrong or, at the least, attended with sufficient doubt to warrant its being reconsidered; (2) whether the application for leave raises a question of general public importance, an issue of principle or the applicant for leave can demonstrate that significant injustice is likely to result (sometimes referred to as a 'reasonably clear injustice') if leave is not granted; and (3) whether the likely costs of the appeal are proportionate to the issues at stake.
2. Whether leave to appeal is in the interests of justice will also be informed by the goal and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA): NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd.[1]
3. The Court of Appeal considered the applicable principles as to appellate review of costs orders in Grove v Grove.[2] The court emphasised that:
   1. In this context, as elsewhere, the requirement for leave to appeal is no mere technicality or procedural nicety; it serves an important function in the administration of justice by discouraging unnecessary appeals [34].
   2. The gateway requirement of leave is particularly important in the context of a litigant seeking to appeal a costs order. Satellite litigation as to costs should not be allowed to assume a life of its own, disproportionate to its significance. It is in the interests of the parties and the public that disputes as to costs be resolved as quickly, efficiently and inexpensively as possible [34].
   3. It is seldom in the interests of justice, nor consistent with the goal and objects enshrined in O 1 r 4A and r 4B of the Rules of the Supreme Court, that a litigant be permitted to challenge a discretionary costs order. Thus, ordinarily as a matter of fact, a grant of leave to appeal on a costs issue is rare [35].
4. In respect of these considerations, counsel for the defendants drew the court's attention to Johnson v Denwest Nominees Pty Ltd t/as Cinderdin Roadhouse.[3] It is appropriate to highlight two statements that were endorsed by the court in that case:

[T]he requirement for the grant of leave provides a mechanism by which the court can actively discourage the dissipation of further costs in what will very often prove to be a futile attempt to challenge a discretionary judgment relating to costs [119]. (Here endorsing observations of Martin CJ in Cardno BSD Pty Ltd v Water Corporation [No 2].[4])

Consideration of an application for leave 'must start from the premise that, as a matter of policy, appeals as to costs only are to be discouraged' [121]. (Here endorsing the observations of Malcolm CJ in Garner v Rohanna Pty Ltd.[5])

1. The costs of and incidental to all proceedings in the Supreme Court are in the discretion of the court or judge: Supreme Court Act s 37(1).
2. In assessing whether to grant leave to appeal, it ought to be remembered that an appeal court will not, without strong reason, interfere with an exercise of discretion on a question of costs. It is necessary to demonstrate manifest error or that the order stands outside the limits of a sound discretionary judgment: Barboutis v The Kart Centre Pty Ltd [No 2].[6] By 'manifest error' what must be shown is that the primary court made an error in principle or acted on a manifestly erroneous view of the facts or that the order is unreasonable or plainly unjust: Spotless Group Ltd v Premier Building and Consulting Pty Ltd (receivers appointed).[7] In short, the appellant must establish appellable error in a House v The King[8] sense: Keet v Ward.[9]
3. Absent express error, an appeal court is not entitled to substitute its own decision for that of the primary court merely because the appeal court prefers a different result or considers that a different result would be more just and equitable. The test is not whether the Court of Appeal would have made the same order but whether there is a ground on which the primary court's order could reasonably be made: Spotless Group Ltd v Premier Building and Consulting Pty Ltd (receivers appointed) [11].

1. We were not satisfied that the appellants had established that the interests of justice required a grant of leave to appeal against the primary judge's orders as to costs made 17 June 2025. To the contrary, for the following three reasons, we were positively satisfied that the interests of justice militated in favour of the refusal of leave to appeal.
2. First, the appellants did not demonstrate that the costs decision was attended with sufficient doubt to warrant its being reconsidered.
3. There were four components to the costs decision (see [9] and [11] above). The latter two components of the costs decision were not directly challenged by grounds 1 and 2. Presumably the appellants contended that, if successful in disturbing one or both of pars 1 and 2 of the costs order, it would follow that pars 3 and 4 of the costs order would also be set aside. That may be correct if ground 1 was upheld and par 1 of the costs order was set aside. However, success on ground 2, and the setting aside of par 2 of the costs order, would not result in the setting aside of par 3 of the costs order. In any case, the grounds of appeal only directly challenged pars 1 and 2 of the costs order.
4. Ground 1 challenged par 1 of the costs order dealing with the plaintiffs' interlocutory application dated 25 November 2024. In support of ground 1 the appellants submitted that:
   1. The primary judge applied orthodox principles to a final resolution without a hearing on the merits whereas the application before the court was an interlocutory application.
   2. On 10 April 2025, before dismissing the plaintiffs' interlocutory application dated 25 November 2025, the primary judge stated that in light of the extra-curial steps taken by and on behalf of Philip, the application for an interlocutory injunction 'simply cannot succeed' (ts 149). This, according to the appellants, was because the plaintiffs' substantive case could not succeed: the reason why the interlocutory injunction application failed was the reason why the plaintiffs' substantive application would fail.
   3. In these circumstances the court was not deprived of the means of determining who had, or would have had, success in the litigation.
   4. The primary judge acted on the incorrect principle that the discretion to award costs was not actuated if neither party acted unreasonably or alternatively overlooked the material consideration that the plaintiffs' substantive application could not succeed.
5. The appellant relied on the decision of Goldberg J in Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (No 3).[10]
6. It is readily apparent that the primary judge exercised the costs discretion in relation to the plaintiffs' interlocutory application dated 25 November 2024 by reference to the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin.[11] In Grove v Grove [41] the court summarised those principles in the following way:

While, ordinarily, a successful party is entitled to an order for its costs, that general rule as to costs following the event is based on the identification of a successful party by a hearing on the merits. Where a matter resolves without a determination on the merits the court is deprived of the factor that will usually determine how the discretion as to costs is to be exercised. The court will not try a hypothetical action between the parties. However, in some cases the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the litigation. Alternatively, in a rare case, the court may feel confident that although both parties have acted reasonably, one party was almost certain to have succeeded if the matter was tried (for example, the court may be satisfied that one party capitulated in the face of probable defeat). But, if it appears that both parties acted reasonably in commencing and defending the proceedings and their conduct continued to be reasonable until the litigation was resolved or its further prosecution became futile, the proper exercise of the costs discretion will usually mean that the court will make no order as to the costs of the proceedings.

1. Counsel for the appellants submitted that the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin, on which the primary judge relied, did not apply to an interlocutory application. This, it was submitted, was critical to the appellants' case for leave to appeal. Counsel submitted that the appellants' proposed appeal raised a question of principle - that being whether or not the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin applied to an interlocutory application. Counsel for the appellants submitted that there should be leave to appeal because the proposed appeal raised this question of principle.
2. In support of the proposition that the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin did not apply to an interlocutory application, counsel for the appellants posited a situation where it was contended that a party had given false evidence in connection with an interlocutory application. Such a circumstance, if proven, would gainsay a finding that the party had acted reasonably in respect of the interlocutory proceedings. Counsel suggested that the falsity might not be determinable at an interlocutory stage where cross-examination was not allowed. This, it was said, would mean that the costs determination of the undetermined interlocutory application should await the outcome of the substantive proceedings. Hence, according to counsel's argument, it could be seen that the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin ought not apply to an interlocutory application.
3. There are at least two difficulties with this submission. First, dealing with the particular circumstances of the example posited, it presupposes that the outcome of the substantive proceedings will always determine the allegation of falsity. That may not be the case where the allegation concerns a matter that is collateral to the issues in the substantive proceedings. Or - as indeed was the highly likely position in the present case - it might be that the substantive proceedings would never be determined on its merits because of the supervening event which meant that the interlocutory application would never be determined on its merits. In those circumstances the consideration raised by counsel for the appellants would provide no basis for the non-application of the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin.
4. Second, more generally, the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin admits of exceptions. The award of costs is a matter within the discretion of the court. The discretion must be exercised judicially and is guided by established principles. But those general principles may, in a particular case, be considered inapplicable where in exercise of the discretion as to costs the court is satisfied for good reason that the interests of justice require a different outcome as to costs. See generally Chittleborough v Troy Group Pty Ltd [No 2].[12]
5. It is convenient to consider the appellants' proposition as to the inapplicability of the principles in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin to an interlocutory application from two perspectives. First, whether as a matter of law the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin ought never to be applied in relation to an interlocutory application. Second, whether the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin ought not to have been applied in the circumstances of the present case.
6. We do not accept the contention that, as a matter of law, the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin are inapplicable to an interlocutory application. The contention is contrary to authority and principle.
7. There are many decisions in which a court determining the costs consequences of an interlocutory application that resolved without a determination on the merits has applied the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin. See for example Fordyce v Fordham;[13] Kelliher v Commissioner for Main Roads;[14] G1PC Pty Ltd v Petstock Pty Ltd (No 2);[15] Baller Industries Pty Ltd v Mero Mero Leasing Pty Ltd;[16] Re Hawkesbury House Pty Ltd;[17] Furnish & Finish Pty Ltd v Hollands;[18] Wang v Cai (No 2);[19] Campbell v Willian;[20] Brindabella Resources Pty Ltd v Australian Transit Group Pty Ltd;[21] Morcom Holdings Pty Ltd v Mountain Asset Partners Pty Ltd (in liq) (No 3).[22]
8. Those decisions are consistent with principle. What underpins the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin is that in the absence of a curial determination on the merits there is no 'event' by which to apply the general rule that costs follow the event. Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin recognises that satellite litigation in relation to costs is clearly to be avoided. The court will not try a hypothetical action. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided: Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (624). Also relevant, in that context, is the burden placed on the judicial resources of the State: Rules of the Supreme Court 1971 (WA) O 1 r 4B(1)(c) and (e). Those concerns apply equally where an interlocutory application is not resolved by a curial determination on the merits. Accordingly, in principle Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin is equally applicable where an interlocutory application is not determined on its merits.
9. Turning from the general to the specific, the primary judge was correct to apply the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin in the circumstances of the present case. Counsel for the appellants accepted during oral submissions, correctly in our view, that the supervening event which meant that the plaintiffs' interlocutory application dated 25 November 2024 would not be determined on its merits meant that it was highly likely that the substantive proceeding would never be determined on its merits. In those circumstances there is no doubt that it was appropriate to apply the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin to the plaintiffs' interlocutory application dated 25 November 2024.
10. The appellants' submission that the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin did not apply to an interlocutory application, as recorded at [32](4) and [35] above, must be rejected. Accordingly, contrary to ground 1, the primary judge did not act on a wrong principle in applying the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin to the costs of and incidental to the plaintiffs' interlocutory application dated 25 November 2024. What then arises for consideration is whether, as seemingly argued by the appellants in the alternative in support of ground 1, the primary judge misapplied the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin.
11. In an interlocutory matter it will often be easier for the court to determine which party would likely have succeeded had the matter been argued: Major v Woodside Energy Ltd [No 3].[23] That circumstance may, in a particular case, inform the application of the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin.
12. The ability to determine the party who was likely to succeed explains the result in Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (No 3). This was a case where, unlike the present case, the claimant succeeded in obtaining an interlocutory injunction. The defendant was restrained from proceeding with a shareholders' meeting. The injunction was discharged when, with the benefit of the court's reasons for granting the injunctive relief, the defendant proposed issuing a modified explanatory memorandum which met the defects and deficiencies that had been identified by the court.
13. The claimant sought to discontinue the proceedings on terms that the defendant pay its costs. Goldberg J characterised the application for an interlocutory injunction as being, in a sense, an application for final relief [13]. From a practical point of view, having regard to the primary relief sought, the claimant succeeded in its proceedings [14], [16], [18]. The interlocutory injunctive relief which had been granted effectively resolved the issue [17]. His Honour considered such a situation to be a gloss on the category of case in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin where the court could feel confident that one party would be almost certain to have succeeded if the matter had been fully tried. That was because 'the grant of the interlocutory injunction effectively resolve[d] the application for final relief' [17].
14. Goldberg J determined that it was appropriate that the claimant have its costs of and incidental to the interlocutory application and otherwise the parties bear their own costs of the proceedings [19], [21].
15. So understood, Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (No 3) provides no support for the appellants' alternative argument by ground 1. The plaintiffs' interlocutory application dated 25 November 2024 was never determined on its merits. The dismissal of the plaintiffs' interlocutory application on 10 April 2025 was brought about by supervening events, namely, the extra-curial steps taken by and on behalf of Philip in early April 2025. Those steps were taken after judgment was reserved following the hearing of the plaintiffs' interlocutory application on 17 February 2025. This was not a case where the resolution of the plaintiffs' interlocutory application meant that - absent the supervening events - the court could be confident that the defendants were almost certain to have succeeded if the matter was tried. Nor, given the circumstances which brought about the dismissal of the plaintiffs' interlocutory application, could the court be confident that the defendants were almost certain to have succeeded on the plaintiffs' interlocutory application absent the supervening events.
16. The appellants' submission that the primary judge overlooked a 'material consideration' is dependent on the supervening events. The suggested material consideration - ie that the plaintiffs' substantive application could not succeed - relies on the extra-curial steps taken by and on behalf of Philip in early April 2025. The appellants did not contend or seek to establish that the supervening events were inevitable.
17. Once this is appreciated it cannot be accepted that the primary judge overlooked a material consideration in the way suggested by the appellants' submissions and ground 1. The primary judge had regard to, and acted conformably with, the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin in recognising that the supervening events rendered futile the further prosecution of the plaintiffs' interlocutory application dated 25 November 2024. That was the only significance that attached to the suggested 'material consideration'. The question of the costs of the plaintiffs' interlocutory application was not to be adjudged by reference to the position as of 17 June 2025 following the extra-curial steps taken by and on behalf of Philip. Rather, in accordance with the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin, the question of the costs of the plaintiffs' interlocutory application was to be adjudged by reference to the position when the application was filed and prosecuted.
18. For these reasons ground 1 was without merit.
19. Ground 2 challenged par 2 of the costs order made 17 June 2025 - ie it was concerned with the costs order as to the defendants' interlocutory application dated 18 December 2024. The ground was in two parts. The appellants said that the primary judge erred in law in applying the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin where the relief granted was not interlocutory but final. In substance, as we understand it, the point sought to be made was that there was a relevant event for the purposes of a costs determination. Otherwise the appellants said that the conclusion that the plaintiffs had acted reasonably was 'plainly unjust'.
20. The second limb of ground 2 misconceived the relevant House v The King error. It conflated implied error - whether on the facts the result was unreasonable or plainly unjust such that an appeal court should infer there was a failure to properly exercise the costs discretion - with an express error that the primary judge had mistaken the facts. Whether the defendants had acted reasonably in the litigation was one factual matter material to the primary judge's exercise of the costs discretion. It was not, itself, the outcome of the costs discretion. The relevant inquiry was not whether the primary judge's factual finding of reasonableness was unreasonable or plainly unjust but whether it was correct.
21. In relation to the first part of ground 2, the appellants submitted that the primary judge granted permanent prohibitory and mandatory injunctions on the defendants' interlocutory application dated 18 December 2024. Thus, according to the appellants, the defendants obtained final relief on an application to which the plaintiffs had made admissions in writing and by conduct. The appellants submitted that the primary judge should have applied the usual rule as to costs following the event rather than the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin.
22. It goes too far to characterise the defendants' interlocutory application dated 18 December 2024 as seeking relief that was final in nature. For example, the part of the application that sought the appointment of a receiver and manager was plainly interlocutory - the appointment was discharged relatively shortly after it was made. More importantly, as the primary judge made abundantly clear in the oral reasons dealing with the costs determination, her Honour did not determine the defendants' interlocutory application on its substantive merits. The primary judge did not make a binding judicial determination of the parties' respective rights and obligations. The primary judge did not consider it appropriate to do so. That is understandable given the short timeframe between the filing and hearing of the application and the nature of the issues raised by the application. Rather, as the primary judge explained, the defendants' interlocutory application was resolved by granting orders designed 'to protect Philip's interests pending the final resolution of the action' (ts 144).
23. The appellants do not, by ground 2 or otherwise, challenge the primary judge's characterisation of the basis on which her Honour made the orders of 23 December 2024 disposing of the defendants' interlocutory application dated 18 December 2024. Accordingly, the primary judge's characterisation of the basis on which the application was determined must be accepted. Once this point is reached the primary judge was entirely correct to apply the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin in determining the appropriate order as to costs on the defendants' interlocutory application. The first aspect of ground 2 fails.
24. The appellants' written submissions on the other part of ground 2 suffer from imprecision brought about by the misconception in the statement of the ground. The submissions are directed to alleged inferred error rather than the primary judge mistaking the facts. In circumstances where the primary judge case managed the litigation, and considered and determined the defendants' interlocutory application dated 18 December 2024, her Honour had a considerable advantage over this court in assessing whether it was reasonable for the plaintiffs to oppose the application. The appellants have not demonstrated that this finding was wrong. The second aspect of ground 2 also fails.
25. It followed, in our opinion, that the appellants had not demonstrated that the costs decision was attended with sufficient doubt to warrant its being reconsidered. To the contrary, having considered the grounds of appeal and the appellants' written and oral submissions, we were satisfied that the appellants had not established appellable error in the primary judge's costs determination. This alone sufficed to refuse leave to appeal. However, as we have mentioned, there were two other reasons why leave to appeal was to be refused.
26. The second reason for refusing leave to appeal was that, properly understood, the appellants' proposed appeal did no more than raise the application of accepted and well settled costs principles to the particular factual scenario before the court in the primary proceedings. The proposed appeal did not raise a question of general public importance. Nor, in substance, did it raise an issue of principle. We acknowledge that in oral submissions counsel for the appellant insisted that the proposed appeal raised an issue of principle as to whether the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin applied to an interlocutory application that was not determined on its merits. However, the way in which the point was argued circled back to matters of application rather than principle. In any case, for the reasons we have given, the appellants' suggested error of principle must be rejected. It cannot sustain the grant of leave to appeal.
27. Putting aside whether the principles established in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin ought to be applied in the context of an interlocutory application, the appellants' proposed appeal invited this court to apply established costs principles to the particular circumstances of the case.
28. The primary judge applied those same accepted and well settled costs principles in reaching the costs decision sought to be challenged. In those circumstances leave to appeal is, ordinarily, only appropriate where a litigant demonstrates a reasonably clear injustice. No such injustice was apparent - even more so given the conclusions we have reached on the merits of the proposed appeal and the disproportionate nature of the appeal.
29. Third, and most importantly in terms of refusal of leave to appeal, the costs of the proposed appeal were disproportionate to the issues at stake.
30. The appellant's case did not address the potential monetary benefit that the appellants might secure if the appeal was to be allowed and the appellants were to obtain the orders wanted in the appellant's case in substitution of the costs orders made by the primary judge. Nor was the likely quantum the subject of affidavit evidence. It is likely, however, that the monetary benefit to be achieved by the appellants' proposed appeal could not exceed an amount in the region of $35,970.
31. We have calculated the $35,970 by applying the upper limits in the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024 (WA) and Consolidated Practice Direction PD 4.7.1.1 to the relevant work as follows:
    1. Plaintiffs' interlocutory application dated 25 November 2024 (scale item 10(a) with counsel) - $15,840.
    2. Defendants' interlocutory application dated 18 December 2024 (scale item 10(a) with counsel) - $15,840.
    3. The hearing on 10 April 2025 (PD 4.7.1.1 item 2.4) - $2,574.
    4. The application for costs (PD 4.7.1.1 item 2.10) - $1,716.
32. We appreciate that, as to the defendants' interlocutory application dated 18 December 2024, the appellants' written submissions make an ambit claim for indemnity costs. However, there is no such claim in the orders wanted in the appellant's case. Also, before the primary judge there was no such claim (only an unsubstantiated claim for an uplift to the scale hourly rate for a senior practitioner that is not advanced in the orders wanted on the proposed appeal). It was appropriate, in the circumstances, to apply the scale allowance under the 2024 costs determination. In any case, the amount of $35,970 contains separate allowances for the hearing on 10 April 2025 and the application for costs. Prima facie those matters should be incorporated within the costs allowed on the two applications. We have, however, provided for separate allowances given the terms of the costs order.
33. The parties' costs of an appeal to this court are likely to well exceed the amount of $35,970. Indeed, assuming that the fees for individuals apply, the filings fees alone on the appeal notice, appellant's case, appointment to settle the appeal book index, appeal books/setting down fee and allocation of a hearing date amount to $8,674. Putting aside those disbursements, the parties' likely professional fees for their solicitors and counsel in an appeal in this court can be expected to well exceed the amount of $35,970. This is even if, as counsel for the appellants suggested in oral submissions, the appeal itself might be determined on the papers.
34. The disproportionate nature of the proposed appeal, in terms of the costs of the appeal and the costs that might be allowed if the appellants succeed, is not the only material consideration. Also relevant is the burden placed on the limited judicial resources of the State: Johnson v Denwest Nominees Pty Ltd t/as Cinderdin Roadhouse [118]. Here too the burden of the proposed appeal is disproportionate to the issues at stake.
35. The combined force of these three matters meant that it was not in the interests of justice to grant leave to appeal.

Disposition - the question of an extension of time to commence the appeal

1. The time to commence an appeal will not be extended unless the proposed appeal has some prospect of success: Simonsen v Legge.[24] The appellants' proposed appeal had no prospects of success where leave to appeal was to be refused. Accordingly, the refusal of the application for leave to appeal meant that there should also be refusal of the application for an extension of time to commence the appeal.

1. For these reasons, at the conclusion of the hearing on 22 October 2025 we made orders that:
   1. The appellants' application for an extension of time to commence an appeal from the orders made by the Supreme Court of Western Australia (Whitby J) on 17 June 2025 in action COR/186/2024 is dismissed.
   2. The appellants' application for leave to appeal from the orders made by the Supreme Court of Western Australia (Whitby J) on 17 June 2025 in action COR/186/2024 is dismissed.
   3. The appeal is dismissed.
   4. The appellants pay the second and third respondents' costs of the appeal, including any reserved costs, to be assessed if not agreed.
2. The costs order followed the event.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [119].

[2] Grove v Grove [2022] WASCA 86 [33] - [37] (subsequently approved in North West Pilots Pty Ltd v Daniel [2023] WASCA 122 [76]).

[3] Johnson v Denwest Nominees Pty Ltd t/as Cinderdin Roadhouse [2017] WASCA 200 [119] - [122].

[4] Cardno BSD Pty Ltd v Water Corporation [No 2] [2011] WASCA 161 [10].

[5] Garner v Rohanna Pty Ltd [1999] WASCA 178 [15].

[6] Barboutis v The Kart Centre Pty Ltd [No 2] [2020] WASCA 41 [165].

[7] Spotless Group Ltd v Premier Building and Consulting Pty Ltd (receivers appointed) [2008] VSCA 115 [11].

[8] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.

[9] Keet v Ward [2011] WASCA 139 [17].

[10] Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (No 3) [2006] FCA 1023 [9] - [17].

[11] Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 ‑ 625.

[12] Chittleborough v Troy Group Pty Ltd [No 2] [2025] WASCA 4 [74].

[13] Fordyce v Fordham [2006] NSWCA 274; (2006) 67 NSWLR 497 [27], [87].

[14] Kelliher v Commissioner for Main Roads [2013] WASC 437 [1], [26].

[15] G1PC Pty Ltd v Petstock Pty Ltd (No 2) [2016] FCA 1056 [2], [23] - [24].

[16] Baller Industries Pty Ltd v Mero Mero Leasing Pty Ltd [2019] NSWSC 1067 [18] - [19], [47].

[17] Re Hawkesbury House Pty Ltd [2020] NSWSC 618 [5].

[18] Furnish & Finish Pty Ltd v Hollands [2020] NSWSC 1593 [15], [34] - [35], [39].

[19] Wang v Cai (No 2) [2021] NSWSC 1268 [62] - [63].

[20] Campbell v Willian [2023] NSWSC 579 [84], [89] - [94].

[21] Brindabella Resources Pty Ltd v Australian Transit Group Pty Ltd [2025] WASC 424 [4], [19].

[22] Morcom Holdings Pty Ltd v Mountain Asset Partners Pty Ltd (in liq) (No 3) [2025] FCA 1139 [7], [17].

[23] Major v Woodside Energy Ltd [No 3] [2009] WASC 246 [20].

[24] Simonsen v Legge [2010] WASCA 238 [8](g).