City of Canada Bay Council v Bonaccorso Pty Ltd (No 3) [2008] NSWCA 57

New South Wales Court of Appeal

CITATION: City of Canada Bay Council v Bonaccorso Pty Ltd (No 3) [2008] NSWCA 57

HEARING DATE(S): On the papers

JUDGMENT DATE: 10 April 2008

JUDGMENT OF: Mason P; Tobias JA; Young CJ in Eq

(a) Set aside Order (d) made in the substantive judgment of this court on 10 December 2007; (b) Remit to the Land and Environment Court the issue as to the costs of the hearing at first instance before that Court to be determined in light of the reasons and orders of this Court given and made on 10 December 2007; DECISION: (c) The appellant to pay the first respondent's costs of the appeal so far as they relate to para 1 of the appellant's Amended Notice of Appeal with Appointment filed on 26 September 2007; (d) The first respondent to pay the remainder of the appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified; (e) The third, fourth and fifth respondents to pay their own costs of the appeal; (f) The appellant to pay the first respondent's costs of the Notice of Motion filed for the first respondent on 17 December 2007.

CATCHWORDS: Costs – Whether costs order made in substantive judgment should be varied – Whether there were exceptional circumstances which justified re-opening of costs issue – Whether costs should follow result of appeal – Whether issues argued on appeal were separable so as to justify special costs order.

Local Government Act 1993 (NSW) Real Property Act 1900 (NSW) LEGISLATION CITED: Suitors' Fund Act 1951 (NSW) Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules