The Court held that a superior court retains jurisdiction to award costs under s 24 of the Supreme Court Act 1986 even where it finds it lacks substantive jurisdiction over the dispute, following In re Crittendon and Kinex Exploration. The Court further held that the threshold for costs under s 92(2) of the Retail Leases Act 2003 — requiring vexatious conduct that unnecessarily disadvantaged the other party — was readily met where the plaintiff commenced proceedings in the wrong forum without regard to the potential application of the RLA, and conducted the trial in a manner that included filing undisclosed supplementary documents, unmeritorious applications, and procedural non-compliance. Where Court and VCAT proceedings are so intertwined that jurisdictional apportionment is impracticable, costs may be awarded on the totality of the proceedings under the Supreme Court's general costs power.
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