NSW Caselaw
Reported Decision: 154 LGERA 49
New South Wales Court of Appeal
CITATION: Fordham v Fordyce [2007] NSWCA 129
HEARING DATE(S): 29 May 2007
JUDGMENT DATE: 29 May 2007
JUDGMENT OF: Ipp JA at 1; Basten JA at 31; Young CJ in Eq at 49
EX TEMPORE JUDGMENT DATE: 29 May 2007
DECISION: Leave to appeal refused.
CATCHWORDS: COSTS – appeal on costs alone – the approach of appellate courts to such appeals – costs of an application for an access order under the Access to Neighbouring Land Act 2000 (NSW) – general discretion as to costs – 'indulgence principle' – whether, where a person seeks an access order under the Act and is unable to show that the refusal by the owner of the land to consent to access was unreasonable, the owner is entitled to the costs of the consent to access application – reasonableness of refusal to consent to access – onus on the person who refuses access to establish the reasonableness of the refusal – entitlement to costs thrown away – whether the claimants were entitled to such costs
Access to Neighbouring Land Act 2000 (NSW), ss 11, 27, 29, 30, 31(1) Conveyancing Act 1919 (NSW), s 88K Corporations Act 2001 (Cth), s 419A LEGISLATION CITED: Crimes (Appeal and Review) Act 2001 (NSW), ss 52(1), (2), 53(1) Land and Environment Court Act 1979 (NSW), ss 5(1), 9(2), 19(e2), 71 Local Courts Act 1982 (NSW), ss 36(1)(d), 40, 64, 65, 73(1), 74(2)(c) Supreme Court Act 1970 (NSW), s 69 Supreme Court Rules 1970 (NSW), Pt 51B, r 6
Australian Securities and Investments Commission v Farley (2001) 51 NSWLR 494 Fordham v Fordyce [2006] NSWLEC 109 Fordham & 1 or v Fordyce [2006] NSWSC 1111 Hill v King (1993) 31 NSWLR 654 CASES CITED: Hunter Development Brokerage Pty Ltd v Cessnock City Council [No 2] [2006] NSWCA 292 Meagher v Stephenson (1993) 30 NSWLR 736 Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin, Re (1997) 186 CLR 622 Nardell Coal Corporation (in liquidation) v Hunter Valley Coal Processing (2003) 178 FLR 400 New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) ATR 602 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009
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