COSTS — applications pursuant to s 98 of the Civil Procedure Act 2005 that the Court make an order for costs of the substantive proceedings — Class 4 judicial review and civil enforcement proceedings — complying development certificate — consent orders requiring parties to carry out certain works but otherwise dismissing the proceedings — whether party acted unreasonably — reasonableness of commencement of proceedings — whether party surrendered or capitulated — no order as to costs
Quick Take
1Where Class 4 judicial review and civil enforcement proceedings are resolved by consent orders that include a formal dismissal but also require the respondent to carry out substantial rectification works, the formal disposition by dismissal does not necessarily reflect 'the event' for costs purposes, but nor does obtaining most of the practical relief sought necessarily establish that the respondent surrendered or capitulated where the relief substantially mirrors what had been offered pre-litigation.
2A party's conduct in lodging development applications for works alleged to have been unlawfully approved under a complying development certificate is not necessarily a capitulation to the opposing party's judicial review grounds where the chronology shows the applications were lodged before the challenge was raised, consistent with the party's own position that the CDC did not approve those works.
3Where both parties have acted reasonably in commencing and defending proceedings and their conduct remained reasonable until settlement, the proper exercise of the costs discretion is ordinarily to make no order as to costs, even where one party obtained most of the practical relief sought, particularly where pre-litigation offers substantially reflected the final outcome and the proceedings were commenced with limited pre-litigation notice.
