Fordham v Fordyce

(2007) 154 LGERA 49; [2007] NSWCA 129

NSW Court of Appeal

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Interrogate

Catchwords

1. Costs
2. › Discretion as to costs
3. › Application for access order under Access to Neighbouring Land Act 2000 (NSW)
4. › Whether 'indulgence principle' applies
5. › Whether refusal to consent to access was unreasonable
6. › Onus of proof
7. › Access to Neighbouring Land Act 2000 (NSW), s 27
1. Costs
2. › Appeals on costs alone
3. › Approach of appellate courts
4. › Second appeal on costs
5. › Whether leave to appeal should be granted
1. Neighbouring Land
2. › Access to Neighbouring Land Act 2000 (NSW)
3. › Nature of right to access
4. › Whether access order is an 'indulgence'
5. › Costs discretion under s 27
6. › Unfettered discretion
1. Practice and Procedure
2. › Appeals
3. › Jurisdiction
4. › Appeal from Local Court costs order under Access to Neighbouring Land Act 2000 (NSW)
5. › Whether appeal lies to Land and Environment Court or Supreme Court
6. › Whether appeal provisions in Access Act exclusive of Local Courts Act 1982 (NSW)
7. › Access to Neighbouring Land Act 2000 (NSW), s 31
8. › Local Courts Act 1982 (NSW), ss 64, 73, 74

Quick Take

An applicant for an access order under the Access to Neighbouring Land Act 2000 (NSW) is not seeking an 'indulgence' and there is no presumption that the applicant should pay the respondent's costs. Section 27 confers an unfettered discretion as to costs. If a respondent contends that its refusal to consent was reasonable and that this should weigh in the costs determination, the onus of proving that reasonableness lies on the respondent. There is no overarching 'indulgence principle' in costs law that can be derived from specific equitable or statutory contexts.