Australia, Sept. 9 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 8:

1. The Applicant (Mrs Malass) has commenced a Class 1 development appeal of the refusal of a development application lodged in 2024 (2024 DA) by Strathfield Municipal Council (Council) for premises in Boden Avenue Strathfield (the property). The Council filed a notice of motion seeking summary dismissal of the Class 1 appeal on the basis of an abuse of process due to the 2024 DA's similarity to an earlier development application lodged in 2020 (2020 DA). I dismissed that motion on 9 May 2025 in Malass v Strathfield Municipal Council [2025] NSWLEC 44 (May judgment). Mrs Malass now seeks her costs of that notice of motion relying on subrules 3.7(3)(a) and (d) of the Land and Environment Court Rules 2007 (NSW) (LEC Rules). The parties have relied solely on the judgment to support their respective submissions.

2. The consideration of costs arises under rule 3.7 which states:

3.7 Costs in certain proceedings

(1) This rule applies to the following proceedings:

(a) all proceedings in Class 1 of the Court's jurisdiction

...

(2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.

(3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following:

(a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question:

...

(d) that a party has acted unreasonably in the conduct of the proceedings,

3. In Dunford v Gosford City Council (No 3) [2015] NSWLEC 96 at [30], Sheahan J accepted the following as the "key principles" operating when considering the award of costs:

1) Rule 3.7(2) creates a basic rule where there is a presumption against the making of an order for costs; Port Stephens Council v Sansom [2007] NSWCA 299; (2007) 156 LGERA 125 at [48] (Sansom).

2) The effect of the basic rule in r 3.7(2) is that, in the ordinary course, costs will lie where they fall; Agonic Holdings Pty Ltd v Lithgow City Council [2009] NSWLEC 34 at [5] per Biscoe J.

3) The question then is whether, despite the basic rule, it is "fair and reasonable" that a party should be reimbursed for the costs it incurred; Sansom at [50].

4) The formulation "fair and reasonable" calls for a judgment to be made, rather than as a discretion to be exercised, but in any event the evaluative process can be accurately described as conferring a wide discretion; Sansom at [51].

5) Rule 3.7(3) identifies, without limitation, some circumstances in which the Court might consider the making of a costs order to be fair and reasonable; Pet Carriers International Pty Ltd v Botany Bay City Council (No 2) [2013] NSWLEC 150 at [4] per Preston CJ.

6) The circumstances identified in r 3.7(3) may rebut the presumption in r 3.7(2) and may inform the Court's discretion but are neither prescriptive nor exhaustive; Pepperwood Ridge Pty Ltd v Newcastle City Council [2008] NSWLEC 196; 160 LGERA 164 at [73] per Biscoe J; Hillsong Church Limited v Council of the City of Sydney (No. 2) [2012] NSWLEC 118 at [55] per Pepper J.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1988377de089daf26b8ebdd6)

Disclaimer: Curated by HT Syndication.