costs order should be made where proceedings settle
no circumstances
justifying departing from the position that costs will not usually be awarded
Quick Take
1Where proceedings settle without a hearing on the merits, it is usually inappropriate to embark on a detailed factual inquiry — effectively determining the merits — for the purpose of resolving a costs application; an order for costs should only be made where unreasonable conduct is manifest by reference to known, undisputed circumstances (applying Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 and Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84).
2In NCAT strata proceedings where no amount is 'claimed or in dispute' within the meaning of r 38 of the NCAT Rules, s 60 of the NCAT Act applies and the applicant for costs must establish special circumstances.
3Consent orders reflecting a jointly agreed scope of works do not indicate capitulation by either party and do not support a departure from the usual no-costs position following settlement.
