Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council (No 2)

The appeal concerned the costs orders made by Robson J in the Land and Environment Court. Filetron Pty Ltd (the appellant) sought to set aside the costs orders made at first instance and to have costs apportioned between Innovate Partners Pty Ltd atf Banton Family Trust 2 (the first respondent) and Goulburn Mulwaree Council (the second respondent).

The primary legal issues were whether the costs orders made at first instance should be set aside, and how the costs of the appeal and the proceedings at first instance should be apportioned between the respondents, particularly in light of the appeal court's finding that the primary judge had erred in concluding that development consent was validly issued. The court also considered whether the second respondent's participation at first instance and on appeal was limited, and whether its costs liability should be joint and several or limited in proportion.

The Court of Appeal set aside the costs orders made by Robson J on 16 October 2023. In lieu thereof, the Court ordered that the first respondent pay 75% and the second respondent pay 25% of the appellant's costs of the appeal and of the proceedings in the Land and Environment Court. The court noted that certain costs orders made in the Land and Environment Court on 5 August 2022 and 8 November 2022 were not disturbed.