Newcastle City Council v Wescombe

Newcastle City Council (the Council) sought leave to appeal from orders of the Land and Environment Court of New South Wales concerning costs. The proceedings in the Land and Environment Court, which were Class 4 proceedings, had been brought by the Council. These proceedings were subsequently the subject of a partial settlement and were otherwise dismissed. The application for leave to appeal concerned the costs orders made against the Council in those proceedings.

The primary legal issue before the Court of Appeal was whether leave to appeal should be granted to the Council in relation to the costs orders made by the Land and Environment Court. This involved considering the principles governing appeals as to costs, particularly in circumstances where the substantive proceedings had been resolved by settlement or dismissal. The Court also considered the application of the Uniform Civil Procedure Rules (UCPR) and the significance of a *Calderbank* letter in the context of the costs dispute.

The Court of Appeal refused leave to appeal. The judges noted that appeals as to costs are generally not favoured and require a strong case to be made out for leave to be granted. The Court found that the Council had not demonstrated sufficient grounds to warrant granting leave to appeal the costs orders. The refusal was based on the assessment that the Council had not met the threshold for an appeal on costs, particularly in light of the *Calderbank* offer and the outcome of the substantive proceedings.

Consequently, the Court of Appeal ordered that leave to appeal be refused, and that the Council pay the costs of the application.