Broken Hill Cobalt Project Pty Ltd v Lord (No 2)

The appeal concerned the costs of proceedings in the Land and Environment Court of New South Wales, which had previously dismissed the applicants' (now appellants') challenge to the grant of development consent for the Broken Hill Cobalt Project. The applicants sought to appeal the decision of the primary judge regarding the award of costs in the Land and Environment Court.

The central legal issue before the Court of Appeal was whether the primary judge had erred in principle in their assessment of costs. Specifically, the court considered whether the primary judge had correctly applied the principles governing the award of costs, particularly in circumstances where a party has been partially successful.

The Court of Appeal found that the primary judge had not erred in principle in their costs order. The court reasoned that the primary judge had properly considered the overall outcome of the proceedings and the relative success of each party in determining the appropriate costs order. The court noted that the applicants had achieved some success in that the respondents had not been awarded all of their costs, but that the respondents had been substantially successful in defending the development consent.

Consequently, the Court of Appeal ordered that the appellants pay two-thirds of the respondents’ costs of the appeal, with no order as to the appellants’ own costs of the appeal.