Byrnes v Origin Energy Ltd (No 2)

[2026] VSC 97

Supreme Court of Victoria

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Interrogate

Catchwords

1. Group proceedings
2. › Group costs orders
3. › Variation of group costs order prior to settlement
1. Group proceedings
2. › Group costs orders
3. › Standing to apply under s 33ZDA(3)
1. Group proceedings
2. › Group costs orders
3. › Applicable test for amendment — appropriate and necessary to ensure justice is done
1. Group proceedings
2. › Group costs orders
3. › Tiered or ratcheted rate structure — permissibility

Quick Take

Practitioners now have a framework for seeking pre-settlement variation of GCOs under s 33ZDA(3): the test is whether variation is appropriate and necessary to ensure justice is done, assessed through a multi-factor analysis (including funding alternatives, abandonment risk, prejudice, proportionality of returns, and tiered structure rationale), without requiring proof of material changed circumstances. However, the Court emphasised such applications should be exceptional and the threshold remains high, meaning practitioners must adduce compelling evidence—particularly regarding the law practice's inability to continue under the existing rate and the absence of viable alternative funding.