Reported Decision: 154 LGERA 49
New South Wales
Court of Appeal
CITATION: Fordham v Fordyce [2007] NSWCA 129 HEARING DATE(S): 29 May 2007
JUDGMENT DATE:
29 May 2007JUDGMENT OF: Ipp JA at 1; Basten JA at 31; Young CJ in Eq at 49 EX TEMPORE JUDGMENT DATE: 29 May 2007 DECISION: Leave to appeal refused. CATCHWORDS: COSTS – appeal on costs alone – the approach of appellate courts to such appeals – costs of an application for an access order under the Access to Neighbouring Land Act 2000 (NSW) – general discretion as to costs – ‘indulgence principle’ – whether, where a person seeks an access order under the Act and is unable to show that the refusal by the owner of the land to consent to access was unreasonable, the owner is entitled to the costs of the consent to access application – reasonableness of refusal to consent to access – onus on the person who refuses access to establish the reasonableness of the refusal – entitlement to costs thrown away – whether the claimants were entitled to such costs LEGISLATION CITED: Access to Neighbouring Land Act 2000 (NSW), ss 11, 27, 29, 30, 31(1)
Conveyancing Act 1919 (NSW), s 88K
Corporations Act 2001 (Cth), s 419A
Crimes (Appeal and Review) Act 2001 (NSW), ss 52(1), (2), 53(1)
Land and Environment Court Act 1979 (NSW), ss 5(1), 9(2), 19(e2), 71
Local Courts Act 1982 (NSW), ss 36(1)(d), 40, 64, 65, 73(1), 74(2)(c)
Supreme Court Act 1970 (NSW), s 69
Supreme Court Rules 1970 (NSW), Pt 51B, r 6CASES CITED: Australian Securities and Investments Commission v Farley (2001) 51 NSWLR 494
Fordham v Fordyce [2006] NSWLEC 109
Fordham & 1 or v Fordyce [2006] NSWSC 1111
Hill v King (1993) 31 NSWLR 654
Hunter Development Brokerage Pty Ltd v Cessnock City Council [No 2] [2006] NSWCA 292
Meagher v Stephenson (1993) 30 NSWLR 736
Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin, Re (1997) 186 CLR 622
Nardell Coal Corporation (in liquidation) v Hunter Valley Coal Processing (2003) 178 FLR 400
New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) ATR 602
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009PARTIES: Gary Shaun Fordham - 1st Claimant
Narelle Jane Fordham - 2nd Claimant
Louise Fordyce - OpponentFILE NUMBER(S): CA 40756/06 COUNSEL: J Simpkins SC with J Johnson - Claimants
M Craig QC - OpponentSOLICITORS: Woolf Associates - Claimants
PMF Legal - OpponentLOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 12301/06 LOWER COURT JUDICIAL OFFICER: Malpass AsJ LOWER COURT DATE OF DECISION: 27 October 2006 LOWER COURT MEDIUM NEUTRAL CITATION: Fordham & 1 Ors v Fordyce [2006] NSWSC 1111
CA 40756/06
Tuesday 29 May 2007IPP JA
BASTEN JA
YOUNG CJ in Eq
GARY SHAUN FORDHAM & ANOR v LOUISE FORDYCE
Judgment
1 IPP JA: By application to the Local Court the opponent sought access to the claimants' land under the Access to
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Details
- AGLC
- Fordham v Fordyce [2007] NSWCA 129
- Case
- [2007] NSWCA 129
- Decision Date
CaseChat Overview and Summary
Fordham v Fordyce concerned an appeal to the Court of Appeal of New South Wales regarding an order for costs made in the primary court. The dispute arose from an application for an access order under the *Access to Neighbouring Land Act 2000* (NSW). The owner of the neighbouring land, Fordyce, had refused consent to the access sought by Fordham. Following the refusal, Fordham applied to the court for an access order. The primary court made an order concerning costs, and Fordham sought to appeal this costs order.
The central legal issues before the Court of Appeal were the approach appellate courts should take when considering appeals solely on the question of costs, and specifically, how the general discretion as to costs applied to applications under the *Access to Neighbouring Land Act 2000*. The court was required to determine whether, in circumstances where an applicant for an access order could not demonstrate that the landowner's refusal to consent was unreasonable, the landowner was entitled to recover the costs of the consent application. This also involved considering the onus of proof regarding the reasonableness of a refusal to consent and whether the claimants were entitled to costs thrown away.
The Court of Appeal considered the "indulgence principle" in the context of costs. It was held that the onus rests on the landowner who refuses access to establish the reasonableness of that refusal. If the landowner fails to discharge this onus, they may not be entitled to their costs. However, the court ultimately determined that leave to appeal on the costs issue should be refused.
Leave to appeal was refused.
The central legal issues before the Court of Appeal were the approach appellate courts should take when considering appeals solely on the question of costs, and specifically, how the general discretion as to costs applied to applications under the *Access to Neighbouring Land Act 2000*. The court was required to determine whether, in circumstances where an applicant for an access order could not demonstrate that the landowner's refusal to consent was unreasonable, the landowner was entitled to recover the costs of the consent application. This also involved considering the onus of proof regarding the reasonableness of a refusal to consent and whether the claimants were entitled to costs thrown away.
The Court of Appeal considered the "indulgence principle" in the context of costs. It was held that the onus rests on the landowner who refuses access to establish the reasonableness of that refusal. If the landowner fails to discharge this onus, they may not be entitled to their costs. However, the court ultimately determined that leave to appeal on the costs issue should be refused.
Leave to appeal was refused.
Orders
Orders of the court
Leave to appeal refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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