Background
This commercial dispute involved 26 issues tried over two weeks in November 2025. The trial judge delivered substantive judgment on 10 December 2025, with orders made on 12 January 2026. The respondents filed a notice of appeal against the substantive decision on 7 January 2026, which is scheduled for hearing on 19–20 August 2026.
After the parties exchanged submissions on costs, the trial judge delivered costs reasons and made costs orders on 28 April 2026. The respondents then filed a second notice of appeal, this time targeting only the costs judgment, on 21 May 2026.
The respondents sought either a declaration that no leave was required, or in the alternative, leave under section 64 of the Supreme Court of Queensland Act 1991 (Qld) to appeal the costs orders.
The Court’s Holding
Justice Freeburn held that leave under section 64(1) was required because the second notice of appeal constituted “an appeal only in relation to costs.” The ordinary and literal meaning of section 64(1) requires that a party obtain the trial judge’s leave before appealing a costs order. Although the notice of appeal referenced the respondents’ pending substantive appeal, the attack was fundamentally directed at re-casting the costs orders made on 28 April 2026.
The court granted leave to appeal on four grounds: (1) the six proposed grounds of appeal were arguable, albeit with problems; (2) the circumstances of a Calderbank offer involved multiple factors affecting the trial judge’s discretion, making the matter one of judgment and impression; (3) the respondents argued that extraneous or irrelevant matters impacted the discretion, which was appropriate for appellate review; and (4) the case involved significant commercial sums and significant costs.
The court reserved the costs of the interlocutory application to the Court of Appeal.
Key Takeaways
- Leave is required under section 64(1) of the Supreme Court of Queensland Act 1991 (Qld) to appeal costs-only orders, absent circumstances where section 64(2) applies (where a substantive appeal has already been commenced and subsequently becomes one only in relation to costs).
- An appeal remains “only in relation to costs” even where it references contingencies based on the outcome of a separate substantive appeal; contingencies do not alter the character of a costs-only appeal.
- Leave will be granted where grounds are arguable, the discretionary circumstances are complex, the trial judge may have allowed irrelevant considerations to influence the decision, and significant sums are involved.
Why It Matters
This decision clarifies the procedural framework for challenging costs orders in Queensland. It establishes that parties cannot circumvent the leave requirement by framing a costs appeal as contingent on success in a substantive appeal. The judgment reaffirms that trial judges retain meaningful discretion to grant leave where arguable grounds exist and the factual matrix is complex, reinforcing that costs appeals are not automatically barred.
For practitioners, the decision confirms that even substantial disagreements about costs discretion—such as allegations that irrelevant matters influenced the decision—will support a grant of leave where the grounds are arguable and the amounts significant. This ensures that important costs determinations receive appellate scrutiny where circumstances warrant it.