Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council (No 2) [2024] NSWCA 72

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council (No 2) [2024] NSWCA 72 Hearing dates: On the papers Date of orders: 4 April 2024 Decision date: 04 April 2024 Before: Ward P; Gleeson JA; White JA Decision: 1. Set aside the costs orders made by Robson J in the Land and Environment Court on 16 October 2023. 2. In lieu thereof, subject to order 3, order the first respondent to pay 75%, and the second respondent to pay 25%, of the appellant's costs of the appeal and of the proceedings in the Land and Environment Court. 3. Note that the following costs orders made in the Land and Environment Court are not disturbed: (a) Order 2 made on 5 August 2022; and (b) Order 2 made on 8 November 2022. Catchwords: COSTS – Party/Party – as to the costs of the proceedings at first instance, whether should be deduction to reflect costs incurred prior to amendment of summons in relation to claims or contentions then abandoned – Whether parties should bear their own costs in respect of a notice of motion filed by the second respondent under s 25C of the Land and Environment Court Act in the proceedings before the primary judge, in circumstances where primary judge was found to have erred in concluding that development consent was validly issued – Where the notice of motion would not have been necessary but for determination (overturned on appeal) that development consent valid COSTS – Party/Party – Apportionment of costs as between respondents following successful appeal – Where second respondent's participation at first instance and on appeal was limited having regard to Hardiman principles – Whether costs liability should be joint and several or limited in the proportions indicated by the primary judge Legislation Cited: Land and Environment Court Act 1979 (NSW), ss 25B, 25C Uniform Civil Procedure Rules 2005 (NSW), rr 6.11, 42.1 Cases Cited: Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Charara v Ku-ring-gai Council [2019] NSWLEC 183 Cutcliffe v Lithgow City Council [2006] NSWLEC 463 Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2023] NSWLEC 45 Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2024] NSWCA 41 Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council (No 3) [2023] NSWLEC 104 Friends of King Edward Park Inc v Newcastle City Council (No 3) [2016] NSWLEC 74 Girchow Enterprises Pty Ltd v Ultimate Franchising Group Pty Ltd (Final Orders) [2023] FCA 500 Platford v van Veenendaal and Shoalhaven City Council (No 2) [2018] NSWLEC 86 Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Rossi v Living Choice Australia Ltd [2015] NSWCA 244 The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 30 Category: Costs Parties: Filetron Pty Ltd (Appellant) Innovate Partners atf Banton Family Trust 2 (First Respondent) Goulburn Mulwaree Council (Second Respondent) Representation: Counsel: J Lazarus SC (Appellant) J Hutton SC with G Ng SC (First Respondent) A Hammond (Second Respondent)