The Court declined to order costs against the unsuccessful applicant in a Class 1 appeal concerning land categorisation under the Local Land Services Act 2013 (NSW). Although the proceedings turned on a determinative question of law (construction of a Remediation Order) engaging r 3.7(3)(a), the Court held this was insufficient to displace the presumptive no-costs rule because the construction issue was not straightforward, the applicant's claim had reasonable prospects of success, a pre-hearing settlement letter did not squarely address the construction argument ultimately relied upon, and the applicant's conduct in advancing supplementary expert evidence was not unreasonable. The decision confirms that merely losing on a determinative legal question does not, without more, make a costs order fair and reasonable under r 3.7(2).
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