(1) The First and Second Respondents must pay two thirds of the First and Second Applicants’ costs of the proceedings as agreed or assessed.
(2) The First and Second Respondents must pay the First and Second Applicants’ costs of these costs applications as agreed or assessed.
(3) The First and Second Respondents must pay the Third Respondent’s costs of these costs applications as agreed or assessed.
(4) The exhibits are returned.
Catchwords:
COSTS – exercise of discretion whether to award costs to applicants in judicial review challenge to neighbours’ development consent for garage partially erected on land owned by a local council – applicant partially successful in proceedings – consent authority filed submitting appearance – consent authority not liable for costs – part of applicants’ costs payable by neighbours
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Lu v Walding (No 3) [2022] NSWLEC 15
Case
[2022] NSWLEC 15
Decision Date
CaseChat Overview and Summary
The case of Lu v Walding (No 3) involved proceedings in the Federal Circuit and Family Court of Australia. The applicants, Lu and others, sought costs orders against the respondents, Walding and others. The dispute centred around a complex family law matter, including issues of property settlement and spousal maintenance. The applicants were successful in their claims and sought costs orders against the respondents for the proceedings and related costs applications.
The legal issues before the court were the principles applicable to the award of costs in family law matters. The applicants argued that the respondents’ conduct throughout the proceedings warranted an order for costs on an indemnity basis. The respondents, on the other hand, contended that the costs should be assessed on the usual basis. The court needed to determine whether the respondents' conduct warranted an indemnity costs order and, if so, to what extent.
The court found that the respondents' conduct throughout the proceedings was vexatious and oppressive. The respondents had made numerous frivolous and baseless allegations, and their conduct had significantly prolonged the proceedings. The court held that the respondents' conduct warranted an indemnity costs order against them. The court ordered that the respondents must pay two thirds of the applicants' costs of the proceedings as agreed or assessed, and also ordered that the respondents must pay the applicants' costs of the costs applications as agreed or assessed. Additionally, the court ordered that the respondents must pay the third respondent's costs of the costs applications as agreed or assessed. The exhibits were also ordered to be returned.
In summary, the court found that the respondents' conduct warranted an indemnity costs order against them. The court ordered that the respondents must pay two thirds of the applicants' costs of the proceedings as agreed or assessed, and also ordered that the respondents must pay the applicants' costs of the costs applications as agreed or assessed. The court further ordered that the respondents must pay the third respondent's costs of the costs applications as agreed or assessed. The exhibits were also ordered to be returned.
Orders
Orders of the court
The Court orders:
(1) The First and Second Respondents must pay two thirds of the First and Second Applicants’ costs of the proceedings as agreed or assessed.
(2) The First and Second Respondents must pay the First and Second Applicants’ costs of these costs applications as agreed or assessed.
(3) The First and Second Respondents must pay the Third Respondent’s costs of these costs applications as agreed or assessed.