Sader v Elgammal

[2025] NSWCA 111

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Sader v Elgammal [2025] NSWCA 111

Hearing dates:

20 May 2025

Date of orders:

23 May 2025

Decision date:

23 May 2025

Before:

Kirk JA at [1];
Free JA at [2];
Griffiths AJA at [3]

Decision:

(1) Leave to appeal is refused.

(2) The applicants pay the first respondent’s costs.

Catchwords:

COSTS — where Class 4 proceedings in Land and Environment Court dismissed by consent — where on application under UCPR r 42.20(1) primary judge ordered “otherwise” by making no order as to costs — no question of principle or issue of public importance, no clear injustice which is more than merely arguable — leave to appeal refused, with costs

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), s 6.8

Land and Environment Court Act 1979 (NSW), s 58

Uniform Civil Procedure Rules 2005 (NSW), r 42.20

Cases Cited:

Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69

Gorczynski v Annandale Services Pty Ltd [2004] NSWCA 71

House v The King (1936) 55 CLR 499; [1936] HCA 40

Nadilo v Eagleton [2021] NSWCA 232

Ouwens Casserly Real Estate Pty Ltd v Harcourts South Australia Pty Ltd [2017] SASCFC 69

Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; 199 LGERA 424

Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16; 265 ALR 112

Sader v Elgammal [2022] NSWLEC 107

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Mark Sader (First Applicant)
Sandra Sader (Second Applicant)
Yasser Elgammal (First Respondent)
Abdul Hammound (Second Respondent)
The State of New South Wales (Third Respondent) (Submitting appearance)

Representation:

Counsel:
DA Hughes and J Farrell (Applicants)
M Seymour SC and J Reid (First Respondent)

Solicitors:
Davidson Legal Consulting Advisory (Applicants)
One Group Legal (First Respondent)

File Number(s):

2024/00478506

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 4

Citation:

[2024] NSWLEC 126

Date of Decision:

29 November 2024

Before:

Pritchard J

File Number(s):

2023/33742

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicants and the first respondent live in adjacent properties in the suburb of Connells Point, NSW. The development of the first respondent’s land gave rise to a series of litigious disputes in the Land and Environment Court (LEC) concerning works prescribed in the underlying construction certificate. That construction certificate underwent several modifications, with its most recent iteration excluding a landscape plan (referred to as Landscape Plan Rev F) and an External Works Plan.

The applicants sought leave to appeal from orders made in relation to Class 4 proceedings in the LEC (which had been dismissed by consent by the parties) where the primary judge declined to give orders as to costs, finding that the removal of those two plans from the construction certificate did not amount to a capitulation, and rather formed part of a compromise. The primary judge also found, assuming it to be relevant, that the conduct of the first respondent was not unreasonable in pursuing his defence.

The Court held (Griffiths AJA, Kirk and Free JJA agreeing) refusing leave to appeal, with costs:

1. As to the primary judge’s reasoning why this case involved a compromise and not a surrender or capitulation, the applicants did not identify any issue of principle, matter of general importance or clear injustice to warrant a grant of leave to appeal; nor have they demonstrated any error of fact or law which is more than merely arguable: [40].

Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Mohareb v Local Court of New South Wales [2024] NSWCA 235, referred to.

2. As to the primary judge’s reasoning why the first respondent’s conduct of his defence was not unreasonable (assuming without deciding that this was relevant to costs: see Nadilo v Eagleton [2021] NSWCA 232), the applicants had not demonstrated any basis to grant leave: [54].

3. While there may be rare and exceptional cases, intermediate courts of appeal will generally adopt a restrained approach in determining whether or not to grant leave to appeal from a costs order. This is in the interests of finality in litigation, as well as in recognition that costs are properly characterised as involving a matter of practice or procedure: [38]-[39], [56].

Gorczynski v Annandale Services Pty Ltd [2004] NSWCA 71, considered.

Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16; 265 ALR 112; Ouwens Casserly Real Estate Pty Ltd v Harcourts South Australia Pty Ltd [2017] SASCFC 69, referred to.

JUDGMENT

1. KIRK JA: I agree with Griffiths AJA.

2. FREE JA: I agree with Griffiths AJA.

3. GRIFFITHS AJA: The applicants (Mr and Mrs Sader) seek leave to appeal from orders made by the primary judge (Pritchard J). Her Honour declined to make an order for costs in relation to Class 4 proceedings in the Land and Environment Court (LEC), after the applicants’ judicial review proceeding had been dismissed by consent.

4. Orders were made for a concurrent hearing of the application for leave to appeal and any subsequent appeal.

5. For the following reasons, leave to appeal should be refused, with costs.

Background matters

6. The applicants and the first respondent (Mr Elgammal) live in adjacent properties in Connells Point, NSW. Their properties overlook the Georges River. (The second respondent, who did not actively participate, is the certifier for the development. The third respondent, the State, filed a submitting appearance.)

7. The development of Mr Elgammal’s land has given rise to a series of litigious disputes. First, there was a dispute as to whether development purportedly carried out by Mr Elgammal with reference to a Construction Certificate dated 17 November 2021 (CC1.0) was consistent with the underlying development consent. CC1.0 incorporated a 12-page landscape plan dated 21 October 2021 and prepared by Dapple Designs. I shall refer to this landscape plan as Landscape Plan Rev D.

8. In August 2022, in proceedings brought by the Saders against Mr Elgammal, Duggan J held that CC1.0 was invalid because it was inconsistent with the development consent. Her Honour found that the excavation of natural rock was unauthorised, as were concrete slabs shown in Landscape Plan Rev D (see Sader v Elgammal [2022] NSWLEC 107 (2022 Sader v Elgammal proceedings)). On 30 September 2022, Duggan J ordered that the concrete slabs be demolished.

9. On 3 November 2022, it appears that two further construction certificates were obtained by Mr Elgammal, both bearing that date. The first did not contain any reference to landscape plans. The second (CC2.0) referred to Landscaping Plans and Specifications prepared by Dapple Designs and dated 21 October 2022. I shall refer to this material as Landscape Plan Rev F. Landscape Plan Rev F was not stamped.

10. The Saders considered that Landscape Plan Rev F showed concrete slabs overhanging the rock face which they said was inconsistent with the orders made by Duggan J. Accordingly, they brought fresh Class 4 judicial review proceedings against Mr Elgammal and others, commencing on 1 February 2023 (Class 4 proceedings).

11. On 10 February 2023, Mr Elgammal modified CC2.0 (now CC2.1), which included Landscape Plan Rev F as well as an External Works Plan by A E Consulting Engineers Pty Ltd. The Saders complained that the External Works Plan depicted works which had, in fact, already been carried out.

12. On 9 June 2023, the applicants filed and served in the Class 4 proceedings an amended summons and points of claim. Given its importance it is appropriate to set out the amended summons showing tracked changes from the original summons filed on 1 February 2023. It should be noted that prayer 1 of the relief claimed sought a declaratory order relating to the validity of the “Modified Construction Certificate” (which presumably was intended to mean the “Modification Construction Certificate” as defined, being CC2.1) because it was claimed that building work to which it related had already commenced. Mr Elgammal says that this became the primary claim and prayer 2, which relates to the landscape plans and External Works Plan, was relegated to an alternative claim.

13. It is also important to note that restraining orders were sought in prayers 5, 6, 7(a) and 8. An order seeking demolition was also sought in prayer 7(b). These prayers for relief are all significant because, as will be elaborated upon, the applicants effectively abandoned these prayers for relief when they consented to the proceeding being dismissed.

14. The amended summons is as follows:

Definitions

In this Summons:

2021 Consent means development consent DA 2020/0430 granted on 7 October 2021 by the Council for demolition works and construction of a dwelling house on the Site.

2021 Consent As Modified means the 2021 Consent as modified by development consent modification MOD2022/0136 on 20 October 2022 for development on the Site described therein as “demolition works, construction of a dwelling house (existing boathouse and swimming pool to be retained). The amendments seek to change levels, openings, stairs and fencing and add an external stair and solar panels”.

Council means the Georges River Council.

Construction Certificate means Construction Certificate CCC-26BOW/2021 issued by the Second Respondent on 17 November 2021.

External Works Footing Plans means the engineering plans identified as such and prepared by AE Consulting Engineers Revision C dated 1 November 2022.

Landscape Plans means landscaping plans and specifications prepared by Dapple Designs, Revision F Dated 21/10/2022, Reference Number LP 01, Sheet 1–9 inclusive.

Modification Construction Certificate means construction certificate CCC-26BOW/2022MOD issued by the Second Respondent and dated 3 November 2022 (as further modified by certificate CCC-26BOW/2022MOD/1 and dated 10 February 2023).

EPA Act means Environmental Planning and Assessment Act 1979.

Site means Lot 13 DP 14,844 located at 26 Bowden Crescent, Connells Point.

Relief Claimed

1 A declaration pursuant to section 6.8(2) of the EPA Act that the Modified Construction Certificate has no effect because it was issued after the building work to which it related was physically commenced on the Site to which the 2021 Consent As Modified applies.

2 Alternatively to order 1, a declaration pursuant to section 6.32 of the EPA Act that the plans and specifications or standards of building work specified in the Modification Construction Certificate are not consistent with the 2021 Consent As Modified for the relevant building work, and, to the extent that it incorporates the Landscape Plans and the External Works Footing Plans the Modification Construction Certificate is invalid and of no effect.

3 Further and alternatively to order 2, declarations that: A declaration that

1a) the Landscape Plans depict the erection of buildings and/or the carrying out of works that constitute development requiring development consent, in circumstances where no development consent has been sought or obtained for those works.

2b) A declaration that, contrary to section 4.2(1) of the EPA Act, the Landscape Plans do not comply with the 2021 Consent As Modified in that they:

a)i. propose works outside the boundaries of the Site in breach of condition 30;

b)ii. depict new retaining walls in breach of condition 33; and

c)iii. depict new building works not approved by the 2021 Consent As Modified.

3 Alternatively to order 2, a declaration pursuant to section 6.32 of the EPA Act that the plans and specifications or standards of building work specified in the Modification Construction Certificate are not consistent with the 2021 Consent As Modified for the relevant building work, and, to the extent that it incorporates the Landscape Plans, the Modification Construction Certificate is invalid and of no effect.

4 A declaration that the First Respondent has carried out building works without development consent or a construction certificate in breach of sections 4.2(1) and 6.7(1) of the EPA Act including but not limited to the construction of dincel walls or retaining walls in the foreshore building area adjacent to the staircase to the pool deck., the construction of a walkway on the south-western boundary of the Site, and the construction of piles, beams and floor to the boathouse.

5 An order that unless authorised by a further development consent, the First Respondent by himself, his employees, servants and agents be restrained from carrying out any further building work:

a) described in the Landscape Plans; or

a)b) described in the External Works Footing Plans; or

b)c) on land below the MHWM or land owned by the State of NSW; or

c)d) in relation to which there is no applicable development consent.

6 An order that the First Respondent by himself, his employees, servants and agents be restrained from carrying out any building work not in accordance with the plans referred to in and forming part of the 2021 Consent As Modified.

7    An order that the First Respondent, by himself, his employees, servants and agents

a) within 7 days cease the carrying out of:

i. any building work referred to in the Landscape Plans;

i.ii. any building work referred to in the External Works Footing Plans;

ii.iii. any building work on the Site which is not in accordance with the plans referred to in and forming part of the 2021 Consent As Modified; and

iii.iv. any building work on the Site in respect of which there is no applicable development consent; and

b) within 28 days remove, demolish and rectify:

i. all buildings, works and structures referred to in order 4 above; and

ii. any building work carried out in reliance on the Landscape Plans including the construction of a walkway on the south-western boundary of the Site;

iii. any building work carried out in reliance on the External Works Footing Plans including the construction of retaining walls; and

c) and dispose of any residual building material following demolition at an authorised waste facility.

8 An order that the First Respondent by himself, his employees, servants and agents be restrained from carrying out any further building work unless and until:

a) he obtains a development consent for that building work; and

b) he obtains a construction certificate in respect of that building work; and

c) he submits to the Georges River Council a landscape plan which is compliant with the 2021 Consent As Modified pursuant to condition 24 of the 2021 Consent As Modified and in accordance with order 8 of Duggan J made in Sader v Elgammal [2022] NSWLEC 107 on 30 September 2022.

9 An order that the Respondents pay the Applicants’ costs of these proceedings on an indemnity basis.

10 Such other or further orders as the Court sees fit.

15. On 13 February 2024, Mr Elgammal made further modifications to CC2.1 by removing references to any landscape plans or to the External Works Plan (CC2.2).

16. The solicitor for the applicants sent two letters dated 5 March 2024 to the solicitors for the first respondent. The first of those letters was sent on an “open basis” with the purpose of identifying the parts of the pleadings which the applicants contended were not resolved by CC2.2. In particular, the solicitor explained at some length why her clients considered that CC2.2 did not resolve prayer 1 of the amended summons. Those reasons included a claim that CC2.0 was of no effect because it was in breach of s 6.8(2) of the Environmental Planning and Assessment Act 1979 (NSW) and that the subsequent modification giving rise to CC2.2 was also necessarily invalid.

17. The second letter dated 5 March 2024 contained an offer to resolve the proceedings on the basis that they be dismissed, with the first respondent paying the applicants’ costs in a fixed amount of $243,379.10.

18. On 22 March 2024 (i.e. shortly after the mediation terminated) consent orders were made dismissing the proceedings, with the question of costs reserved. The consent orders included various notations, including a statement that the Court noted what was described as the “further modification of the construction certificate the subject of the proceedings”. It was also noted that the applicants withdrew a notice to produce issued to the first respondent, as well as two subpoenae. It was further noted that the first respondent did not press a notice of motion challenging the notice to produce and one of the subpoenae.

19. For the purposes of the costs application in the LEC, the parties agreed a statement of agreed facts dated 24 May 2024 (SOAF).

20. The Saders claimed that Mr Elgammal had capitulated by removing from CC2.1 Landscape Plan Rev F and the External Works Plan without replacement and that they were entitled to their costs.

21. The primary judge rejected those claims and concluded that there should be no order as to costs (see PJ [78]-[91]). In brief, her Honour held that:

1. there was “no clear winner” and Mr Elgammal had not surrendered or capitulated; and

2. Landscape Plan Rev D and Landscape Plan Rev F were not “almost identical” as claimed by the Saders, and it was not unreasonable of Mr Elgammal to defend the proceeding up until 22 March 2024.

The primary judge’s reasons summarised

22. Drawing on the SOAF and a bundle of documents (which included planning documentation and the parties’ correspondence), the primary judge described the background to the parties’ dispute, including Duggan J’s judgment and orders in the 2022 Sader v Elgammal proceedings. Her Honour also referred to separate proceedings commenced on 2 February 2023 by Georges River Council against Mr Elgammal, in which the Council sought similar relief to that sought by the Saders in their original summons, including challenging the validity of CC2.0 (Council proceedings).

23. Her Honour noted that, shortly after the amended summons and points of claim were filed in the proceedings, the Court ordered on 7 July 2023 that both the Class 4 proceedings and the Council proceedings proceed to mediation. The mediation took place on 7 December 2023. Shortly beforehand (on 5 December 2023) the Council filed a notice of discontinuance in the Council proceedings. The notice of discontinuance stated that each party would bear their own costs.

24. CC2.2 was issued on 13 February 2024, in which all references to landscape plans or the External Works Plan were removed. The mediation in the Sader proceedings terminated on 19 March 2024. As noted above, on 22 March 2024 orders were made by consent dismissing the Class 4 proceedings with costs reserved.

25. Pritchard J identified the following two issues as requiring determination:

1. whether the removal of Landscape Plan Rev F from CC2.1 was a “capitulation” by Mr Elgammal; and

2. whether Mr Elgammal acted unreasonably in defending the proceedings.

26. The primary judge summarised relevant legal principles from several authorities, including McHugh J’s judgment in Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 and Nadilo v Eagleton [2021] NSWCA 232. Her Honour noted what appeared to be different approaches in Nadilo. Her Honour noted that Preston CJ of LEC said in that case at [93]-[94] that where there was “a clear winner” (based on a review of the substance of the relief sought in the originating process and whether, in substance, that relief had been obtained), the applicant also needed to demonstrate that the respondent’s conduct in defending the proceedings up until their termination was unreasonable, citing Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; 199 LGERA 424.

27. In contrast, Brereton JA (with whom Meagher JA agreed) said in Nadilo at [12] that where one party effectively capitulates, rendering further litigation unnecessary, without any element of compromise, it is not necessary to demonstrate “unreasonableness” to obtain an “order otherwise” pursuant to r 42.20(1) of the Uniform Civil Procedure Rules 2005 (NSW).

(a) Was the removal of Landscape Plan Rev F from CC2.1 “a capitulation”?

28. After summarising the parties’ respective submissions on this first issue, the primary judge said that she was not persuaded that Mr Elgammal had effectively surrendered. After noting that this was a case where there had been no hearing on the merits and the moving party no longer wished to pursue the proceeding, her Honour observed that the Court had to assess matters “on the basis of known and undisputed facts to avoid trying a hypothetical action”. Moreover, her Honour acknowledged at PJ [78]:

… there is a distinction between an effective surrender by one party to the other which ordinarily would attract the usual costs order, and a settlement, supervening event or an extra-curial activity that so removed or modified the subject matter of the dispute that no issue remained except that of costs where ordinarily no costs order would be made.

29. After referring to the test in Lai Qin, the primary judge said that she was not satisfied that the Saders were “almost certain to have succeeded if the matter had been fully tried” (PJ [79]).

30. The primary judge explained why she considered Nadilo to be distinguishable:

1. Nadilo did not involve a complete dismissal of the claim and the primary judge there had made an order requiring the respondent to ensure that the air conditioning units (which were at the heart of the litigation) met, on an ongoing basis, relevant regulatory standards; and

2. there was no compromise – rather the respondents there simply surrendered, underpinning the findings by all three judges in Nadilo that the applicant was a “clear winner” (PJ [79]).

31. Her Honour said that the amended summons changed the relief sought “in a not insignificant way” (PJ [81]). This is because the claim in prayers 1 and 4 of the amended summons alleged that Mr Elgammal had commenced work depicted in CC2.2 so as to render the construction certificate invalid, whereas the claim in prayer 2 of the amended summons which related to Landscape Plan Rev F was now expressed to be in the alternative to the primary claim in prayer 1.

32. Her Honour added that, while it was inappropriate to conduct a hypothetical trial with a view to assessing the prospects of success for the relief sought in prayer 2 of the amended summons, she was not satisfied that Landscape Plan Rev F was “almost identical” to Landscape Plan Rev D, as claimed by the Saders. The primary judge reproduced part of each of those landscape plans (at PJ [84]) which, for convenience, are again now reproduced:

Figure 1. Rev D (left) and Rev F (right)

(b) Did Mr Elgammal act unreasonably in defending the proceedings?

34. The primary judge then turned to the second issue, relating to the reasonableness of Mr Elgammal’s conduct. Her Honour did so on an assumption that, contrary to the majority view in Nadilo, this was a relevant matter. Her Honour then explained why she was not satisfied that Mr Elgammal had acted unreasonably in continuing to defend the proceedings. Her Honour noted in particular at PJ [88] that no points of defence or evidence had been filed and that all orders and directions had been made by consent.

35. Finally, her Honour noted at PJ [91] that the fact that the Council proceedings had been commenced against Mr Elgammal the day after the Class 4 proceedings were commenced was not a relevant consideration. Her Honour ultimately concluded that there should be no order as to costs of the Class 4 proceedings nor any order for costs in relation to the Saders’ costs application itself.

Consideration and determination

36. It is common ground that leave to appeal is required in circumstances where the primary judge’s orders were made in the LEC’s Class 4 jurisdiction and concern costs (see s 58(3)(c) of the Land and Environment Court Act 1979 (NSW)).

37. The applicants properly acknowledged that to obtain leave to appeal they need ordinarily to demonstrate that there is an issue of principle, a matter of general importance or a clear injustice which is more than merely arguable (see Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 and Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [25]).

38. The applicants also properly acknowledged that the primary judge’s decision on costs involved the exercise of discretion, which required them to demonstrate an error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40.

39. In determining the application for leave to appeal it is also relevant to bear in mind that costs involve matters of practice and procedure. Intermediate appellate courts are generally cautious in granting leave to appeal in such matters. Thus, in Gorczynski v Annandale Services Pty Ltd [2004] NSWCA 71 at [16] Santow JA (with whom Meagher and Ipp JJA agreeing) said:

Costs are, as a general rule, matters of practice and procedure, and therefore subject to the same stringent standards as Gilbert. Thus Priestley JA in Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 at 651:

In a great many cases, including the present, costs are in the discretion of the Court; they also seem to me to fall within the category of matters of practice or procedure. The same policy therefore seems to me to underlie the granting or withholding of leave to appeal in a case such as the present as the policy described by Jordan CJ in Re the Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323;

40. Some intermediate appellate courts have gone so far as to say that courts are “loath” to overturn costs orders (Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16; 265 ALR 112 at [113] per Jacobson, Siopis and Foster JJ) and will avoid encouraging appeals on questions of costs (Ouwens Casserly Real Estate Pty Ltd v Harcourts South Australia Pty Ltd [2017] SASCFC 69 at [7] per Kourakis CJ, Peek and Stanley JJ). Having said that, however, there are exceptions. The applicants emphasised that this Court granted leave to appeal and upheld the appeal in relation to costs orders in the LEC in Nadilo.

41. For the following reasons, I do not consider that the applicants have identified any issue of principle, matter of general importance or clear injustice to warrant a grant of leave to appeal. Nor have they identified any error of fact or law which is more than merely arguable.

42. I consider that the primary judge was correct to place the emphasis which she did on the significance of the changes made in the amended summons. When the summons was originally filed it was clear that the relief sought was primarily directed to Landscape Plan Rev F. But that changed in the amended summons on 9 June 2023. Prayer 1 then became the primary claim which, when read together with related prayer 4, claimed that Mr Elgammal had physically commenced work depicted in CC2.1 which rendered CC2.1 invalid. Significantly, the claims relating to Landscape Plan Rev F were expressed to be in the alternative to the primary claim.

43. It was well open to the primary judge to take the view that the proceedings were terminated as a result of a compromise between the parties, rather than a capitulation. The orders made on 22 March 2024 noted the further modification of CC2.1 (which was the subject of prayer 1), dismissed the proceedings and reserved costs. These consent orders were made shortly after the termination of the mediation. The compromise involved Mr Elgammal no longer defending CC2.1 and applying for a new construction certificate which excluded Landscape Plan Rev F and the External Works Plan. The Saders compromised what had become their primary claim in prayer 1, by agreeing to the proceedings being dismissed without that issue being determined.

44. Significantly, by agreeing to the proceeding being dismissed in that manner, the applicants abandoned the other relief sought by them in the amended summons, including the relief in prayer 1, the orders seeking to restrain the first respondent from carrying out further building work (prayers 5, 6, 7(a) and 8), as well as the order seeking demolition (prayer 7(b)). The applicants’ willingness to give up those various claims for relief strongly supports the primary judge’s finding that the proceedings terminated by way of compromise and not a capitulation on the part of the first respondent. Even though it appears that no reference was made to this matter in submissions below or by the primary judge in her reasons for judgment, it is a powerful consideration against granting leave to appeal.

45. The primary judge’s approach on the issue of compromise does not raise any question of principle or public importance and the applicants have failed to demonstrate any clear injustice or error which is more than merely arguable in respect of her Honour’s reasoning.

46. In their summary of argument, the applicants contended that the primary judge misunderstood an uncontested fact, being the removal of the External Works Plan. They emphasised that [13] of the SOAF recorded the parties’ agreement that Landscape Plan Rev F and the External Works Plan had been removed from CC2.1. The primary judge was well aware of that matter, as is evident from her Honour’s express reference to it in PJ [53] and [62].

47. The applicants contended that the primary judge’s error was revealed at PJ [83] which, they claimed, suggested there were “disputed facts relation [sic] to [Landscape Plan Rev F]”. The applicants added that because Mr Elgammal had abandoned that document, “her Honour likewise erred insofar as she held that there remained any factual or legal issues to resolve”.

48. There are two fundamental difficulties with the applicants’ position. First, those contentions are inconsistent with the claim made in their solicitor’s first letter dated 5 March 2024, in which it was repeatedly asserted that CC2.2 did not resolve the litigation, with particular reference to prayer 1 in the amended summons.

49. Secondly, the applicants have misread PJ [83]. For convenience it is now reproduced:

I am conscious of the undesirability of intruding into disputed facts, and descending into an analysis of the relief sought in the summons and the amended summons. I am aware of the admonition in Lai Qin at 624–625 to avoid embarking on a hypothetical trial and assessing the prospects of success of the relief sought in prayer 2 of the amended summons. However, to the extent it be permissible on a hearing of this kind in relation to costs, for the reasons advanced by the first respondent recorded at [61] above, I am not satisfied that the matters sought to be relied upon by the applicants at [51] above were approved by landscape plan rev F.

50. That paragraph refers to PJ [51] and [61] respectively, which are now reproduced for convenience:

[51] The applicants submitted that “the core issue permeating” the 2022 proceedings before Duggan J and these proceedings was the continued reliance by the first respondent on landscape plans prepared by Dapple Design (both rev D and rev F), and that concerns regarding landscape plan rev F permeated the correspondence and pleadings. They submitted that the outcome that they sought to achieve was to ensure that the first respondent did not rely on landscape plan rev F, and rather sought development consent for any redevelopment and/or building works of the terrace and supporting natural rock face on the foreshore of the Georges River.

…

[61]  Despite the “danger of intruding into disputed facts”, in order to respond to the applicants’ submissions, it was necessary to understand the gravamen of the alternative claim. The “essence of the claim” was in correspondence from the applicants’ solicitor dated 12 December 2023 which asserted that “the [landscape plan rev F] show many of the same features depicted in [landscape plan rev D] (which were found by the Court to be inconsistent with the [development consent]”. That assertion was submitted to be based upon a misreading of the construction certificate and the annotated landscape plan rev F. The construction certificate itself was stamped with the following note: “the scope of works approved under this constructions (sic) certificate Modification CCC-26BOW/2022MOD/1 include annotated landscape plan only”. Further, the landscape plan, while appearing in the list of approved plans, was not stamped by the certifier.

51. Fairly read, PJ [83] does not suggest any sufficiently arguable error to warrant leave to appeal. Her Honour was merely responding to the applicants’ claims, as summarised at PJ [51], by accepting the first respondent’s submissions which were summarised at PJ [61]. Those submissions included claims that the applicants had misread the construction certificate and the annotated Landscape Plan Rev F, matters which were left unresolved by the termination of the proceedings.

52. Nor has any error which is more than merely arguable been demonstrated in respect of the primary judge’s rejection of the applicants’ claim that Landscape Plan Rev F was “almost identical” to Landscape Plan Rev D. It was the applicants themselves who raised that issue in the proceeding below, and the applicants who used the words “almost identical” to describe the two versions of the landscape plans. In advancing that submission, the applicants invited the very kind of comparison undertaken by the primary judge. For example, the applicants’ outline of written submissions dated 28 May 2024 contain the following contentions:

40. A simple comparison between the Landscape Plans Revision D and the Landscape Plans Rev F shows their marked similarities. A comparison with the approved architectural plans shows their marked differences and leads to the inescapable finding that, for the purposes of section 6.32 or the EP&A Act. the plans and specifications or standards of building work specified in the certificate were not consistent with the development consent for the building work.

53. The primary judge cannot be criticised for engaging with that submission and rejecting it on the basis that a simple comparison did not in fact show that the landscape plans were “almost identical”, as shown by the extracts from the colourised plans at PJ [84], and allowing them to speak for themselves (see at [32] above). I would not infer, as the applicants asked the Court to infer, that the primary judge failed to ask the question raised by the applicants about the effect of Landscape Plan Rev F. It may well be that her Honour also took into account differences in the annotations on the two landscape plans but it is unnecessary to go that far.

54. The relatively straightforward nature of the simple task of comparing the two landscape plans is not avoided by describing her Honour’s approach as “asking the wrong question”, as asserted by the applicants. The applicants themselves must accept responsibility for the primary judge focusing on the question whether the plans were “almost identical”. For completeness, it might also be added that, in any event, it is difficult to see how any question of principle or public importance can be divined from visually comparing different landscape plans.

55. Assuming (without deciding) the issue of the reasonableness of the conduct of Mr Elgammal’s defence is relevant (which is the assumption made by the primary judge), no sufficiently arguable error been demonstrated in respect of the primary judge’s reasoning and conclusion. Her Honour correctly viewed the assessment of Mr Elgammal’s conduct as not requiring a review of large volumes of evidence or tentatively resolving disputed questions of fact. As the primary judge noted at PJ [88], no points of defence or any evidence had been filed and all orders and directions in the proceedings were made by consent. In addition, her Honour reiterated that the removal of Landscape Plan Rev F from CC2.1 was not a capitulation which would otherwise have supported a finding of unreasonableness. Nor was it erroneous for the primary judge, by essentially accepting the submissions of the first respondent at PJ [71], to have regard to the fact that, even as late as March 2024, the earlier removal of Landscape Plan Rev F on 13 February 2024 did not resolve the litigation. Indeed, as noted above, that was the applicants’ own stated position as expressed in the first letter dated 5 March 2024.

56. Finally, no arguable error is demonstrated in respect of the primary judge’s finding at PJ [91] that the Council proceedings were not relevant to the issue of costs.

Conclusion

57. In light of the applicants’ persistence in pursuing the issue of costs (as is their legal right) it is worth re-emphasising that, while there will be rare and exceptional cases, intermediate courts of appeal will generally adopt a restrained approach in determining whether or not to grant leave to appeal from a costs order. Such restraint is desirable not only in the interests of finality in litigation but also in recognition of the fact that the determination of costs is a matter for the primary judge’s discretion, which must be exercised judicially, and is not subject to the usual scope of appellate review. Furthermore, litigants can expect that an appellate court will exercise particular caution and restraint when asked to review a costs order because such an order is properly characterised as involving a matter of practice or procedure.

58. For all these reasons, I would refuse leave to appeal, with costs.

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Decision last updated: 23 May 2025