City of Canada Bay Council v Bonaccorso Pty Ltd (No 3)

The dispute before the Court of Appeal of New South Wales concerned an application to vary a costs order made in a substantive judgment. The parties involved were the City of Canada Bay Council (appellant) and Bonaccorso Pty Ltd (first respondent), along with other respondents. The core of the application was whether exceptional circumstances justified re-opening the costs issue, whether costs should follow the result of the appeal, and if separable issues on appeal warranted a special costs order.

The Court was required to determine whether the costs order made in the substantive judgment should be varied. This involved considering if there were exceptional circumstances justifying a re-opening of the costs issue, and whether the costs should follow the result of the appeal. Furthermore, the Court had to assess if the issues argued on appeal were separable, which could lead to a special costs order.

The Court's reasoning led to a decision to set aside a specific order made in the substantive judgment and remit the issue of costs for the hearing at first instance back to the Land and Environment Court. This remission was to be determined in light of the Court's reasons and orders from the substantive judgment. Regarding the costs of the appeal, the appellant was ordered to pay the first respondent's costs related to a particular paragraph of the amended notice of appeal. Conversely, the first respondent was ordered to pay the remainder of the appellant's costs of the appeal and was granted a certificate under the Suitor's Fund Act 1951, provided they qualified. The third, fourth, and fifth respondents were to bear their own costs of the appeal. Additionally, the appellant was ordered to pay the first respondent's costs for a specific notice of motion.