Case note: Barfuss Corporation Pty Ltd v King & Anor (Costs) [2025] VSC 559

Following the recent decision of Justice Harris in the Supreme Court matter of Barfuss Corporation Pty Ltd v King & Anor [2025] VSC 487 this matter was heard on the matter of costs. The dispute arose when the defendants resisted granting the plaintiff access to the property which was subject to a miner’s licence under the Mineral Resources (Sustainable Development) Act 1990 (Vic) (the Act).

Key Facts

• The court found that the proposed works of diamond core drilling and mineral sampling were not within the scope of the definition of ‘low impact exploration’ under Schedule 4A of the Act.
• The proposed works were subject to additional requirements of consent from the registered proprietors under s 43(1)(e) and (ea) of the Act.
• The defendants, as the registered proprietors of the land subject to the proposed works, did not provide consent to the plaintiff.
• On the basis of lack of specificity and insufficient evidence, the court denied granting the declarations and injunction sought by the plaintiff.
• The court found the plaintiff had failed to comply with the statutory requirements of the Act.
• Following the judgement on 14 August 2025, the court granted time sought by the plaintiff to provide written submissions on the matter of costs. Both parties filed these submissions on 22 August 2025.

Cost Orders

1. The defendants are to pay the plaintiff’s costs of the proceeding up to and inclusive of the 12 December 2023 on a standard basis.
2. For the period between 13 December 2023 to 18 October 2024 each party is to bear their own costs.
3. The plaintiff is to pay the defendants’ costs of the proceeding for the period between 19 October 2024 to 11am 3 February 2025 on a standard basis.
4. From 11am 3 February 2025 the plaintiff is to pay the defendants’ costs on an indemnity basis.

Key Reasoning

5. The court considered that an Offer of Compromise and a Calderbank offer dated 30 January 2025 were submitted by the defendants as part of their affidavit material. While the offer was not accepted, numerous subsequent offers from both parties were made in the period between 14 February 2025 and 11 March 2025.
6. In its decision, the court discusses r 26.08 of the Supreme Court Rules which outlines the consequences of failure to accept an offer of compromise where the outcome is a dismissal or judgement in favour of the defendants.
7. The court found that the terms of the offer were clear and compliant with the Supreme Court Rules. It rejected the plaintiff’s submission of the contrary.
8. The plaintiff’s submission that it received “partial success in the adjudication of claims” was dismissed by the court as the court found their claims to be lacking sufficient evidence. As such, the rejection of the offer of compromise results in the consequences in r26.08 applying.
9. The court found the plaintiff’s rejection of the offer to be unreasonable under r 26.08(4)(a) on the basis of there being strong evidence as to no prospect of their sought orders which were outlined in the defendant’s offer.
10. Due to the history of the proceeding the plaintiff should have been aware as to its prospects of success and as such, it was unreasonable for them to reject the offer.
11. The court found that following the grant of the injunction neither party acted consistently with the terms and as a result it was ordered that each party bear their own costs.

Effects of the decision and why this matters

12. The cost orders made in line with r 26.08(4) complimented the orders dated 14 August 2025 where the plaintiffs’ claims were dismissed and the sought after injunctions were rejected.
13. The court exercised its discretion under r 26.08(4) only to the extent of the cost order made for the period between 13 December 2023 to 18 October 2024 which followed the granting of an interim injunction.
14. The court made note of the fact that it did not find relevance in considering the fact that the defendants did not have legal representation between 10 January 2024 and 15 January 2025. This is important to note in future applications r 26.08(4) as lack of legal representation will not impact the way in which costs orders are accessed by the courts. It is only relevant so far as to the costs which the defendants will be able to recover under the orders.
15. The court’s findings are consistent with Supreme Court Rules and the way in which the rules are commonly applied. The uniformity of the application of r 26.08(4) allows for reliability of the orders where appropriateness is met.

Expert Guidance on Litigation and Disputes

This case highlights the costs consequences of rejecting an Offer of Compromise. At PCL Lawyers, our experienced litigation lawyers provide clear, strategic advice to guide you through complex disputes.

We work to ensure you understand the process and your legal options, helping you make informed decisions to protect your interests. If you are facing a mining or property dispute, contact us today for a consultation.

About The Author - Emma Restall

As a Partner in PCL Lawyers' Building & Construction team, Emma delivers tailored legal solutions grounded in both technical expertise, solutions focused support and a deep appreciation of her...