Community Association DP270253 v Woollahra Municipal Council

[2015] NSWCA 80

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Land and Environment Court
4. › Class 1 proceedings
5. › Presumption against costs orders
6. › Whether fair and reasonable to order costs
7. › Whether Wednesbury unreasonableness of underlying decision equates to unreasonable conduct in proceedings
8. › Land and Environment Court Rules 2007 (NSW), r 3.7
1. Practice and Procedure
2. › Costs
3. › Land and Environment Court
4. › Distinction between merits review appeals and orders appeals
5. › Whether character of proceedings relevant to costs discretion
6. › Land and Environment Court Act 1979 (NSW), s 57
1. Appeal
2. › Standard of appellate review
3. › Evaluative decision distinguished from discretionary decision
4. › Whether Warren v Coombes or House v The King governs appeal from costs decision under r 3.7
5. › Land and Environment Court Act 1979 (NSW), s 57(1)

Quick Take

A finding that a council's underlying decision was Wednesbury unreasonable does not, without more, establish unreasonable conduct in the proceedings for the purposes of r 3.7 of the Land and Environment Court Rules 2007 (NSW). The unreasonableness relevant to costs under r 3.7(3)(c) and (d) is confined to unreasonableness in relation to the proceedings themselves. To obtain costs in Class 1 proceedings, a successful party must demonstrate unreasonable conduct by the opposing party as a litigant, not merely that the decision under challenge was unlawful. The standard of appellate review for r 3.7 costs decisions is that in Warren v Coombes (correctness of evaluative decision), not House v The King (discretionary decision).