Diveva Pty Limited v Port Macquarie-Hastings Council

The parties involved in the dispute were Diveva Pty Limited, the appellant, and Port Macquarie-Hastings Council, the respondent. The case arose from an appeal against a decision made by the Land and Environment Court of New South Wales, which had ruled against Diveva in relation to an application for a development consent. The appeal was heard in the Supreme Court of New South Wales, where the appellant sought to challenge the lower court’s decision on the grounds of the award of costs.

The central legal issue that the court was required to address was whether the lower court had properly exercised its discretion in awarding costs under section 98 of the Civil Procedure Act 2005 (NSW). The appellant argued that the lower court had failed to consider the appropriate factors when determining the costs to be awarded and had thus erred in its decision.

The court began by noting the general rule under UCPR 42.1 that costs follow the event, meaning that the unsuccessful party in a litigation generally bears the costs of the successful party. However, the court also recognised that the award of costs is a matter of discretion for the court, which must consider all relevant factors in determining by whom, to whom, and to what extent costs are to be paid. The court examined the lower court’s reasoning and found that it had indeed considered the relevant factors and exercised its discretion appropriately. As a result, the court dismissed the appeal and upheld the lower court’s decision on the award of costs.