Fordham v Fordyce

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.