Edwards v Hyundai Motor Co Australia Pty Ltd; Sims v Kia Australia Pty Ltd (Ruling No 4) [2026] VSC 586 — Costs & Discretion To Award Costs — Barrister AI
Edwards v Hyundai Motor Co Australia Pty Ltd; Sims v Kia Australia Pty Ltd (Ruling No 4)
Carriage dispute between plaintiffs in competing class actions
Quick Take
1A litigation funder's contingent commitment to fund a class action proceeding if carriage is won does not establish the 'real and direct' connection with the carriage dispute required for a non-party costs order, where the funder did not finance the carriage dispute itself, did not instruct or consult with solicitors on the dispute, and was not involved in the decisions that prolonged it — the anterior and sui generis nature of a carriage dispute is materially different from the funded prosecution of a proceeding at large.
2Departure from the usual position that costs of a carriage dispute are costs in the cause is warranted where the unsuccessful plaintiffs' multiple changes of position and ultimately invalid competing proposals unnecessarily protracted the dispute, but costs recovery should be confined to the additional costs attributable to that protraction rather than the entirety of costs that would have been incurred in any event.
3Absence of timely notice to a non-party that a costs order may be sought against it is a relevant factor weighing against the making of a non-party costs order, particularly where there are no reported cases of a funder being ordered to pay costs of an unsuccessful carriage motion.
