Leslie v Buttner (No 2)

Leslie v Buttner (No 2) is a case where the applicant sought declarations that certain development approvals granted by the second respondent to the first respondents were invalid and injunctive relief to remove renovation work undertaken pursuant to those approvals. The application was dismissed by the court, leading to the issue of costs. The applicant accepted that costs should follow the event and be assessed on the standard basis, but the respondents sought an order that the applicant pay their costs on the indemnity basis, citing the applicant’s conduct in the proceedings.

The court considered whether the applicant unduly prolonged the proceedings or otherwise acted unreasonably in conducting the proceedings, which could warrant an order for indemnity costs. The respondents argued that the applicant made several offers of settlement, which were reasonable, and that the applicant’s conduct in advancing contentions that he should have known had no chance of succeeding contributed to the prolongation of the proceedings. However, the court was not satisfied that the applicant’s conduct warranted an order for indemnity costs. The court found that the applicant did not unduly prolong the proceeding or otherwise act unreasonably in the commencement or prosecution of the proceeding.

As a result, the court concluded that the applicant should pay the respondents’ costs of and incidental to the proceeding to be assessed on the standard basis if not agreed. This means that the applicant will bear the costs of the proceedings as per the usual practice, without the higher indemnity costs being awarded to the respondents. This decision underscores the principle that indemnity costs are reserved for cases where the conduct of the party is particularly egregious.