Where proceedings are resolved by consent without a hearing on the merits, the Court will not make a costs order unless unreasonable conduct or capitulation can be demonstrated clearly and concisely by reference to uncontroversial facts. If complex submissions and voluminous evidence are required to establish the point, the Court is likely being invited to impermissibly traverse the merits. Parties negotiating settlement should factor in their expended legal costs at an early stage rather than leaving costs as a residual issue for the Court.
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