Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council (No 2) [2024] NSWCA 72

Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council (No 2) [2024] NSWCA 72

Filetron was the successful appellant and should have its costs. No further reduction of first instance costs was warranted for abandoned claims because Pepper J's 8 November 2022 costs thrown away order already addressed costs caused by the amendment, and a further reduction would double count. The costs of the Council's s 25C motion should follow the event because the motion would not have arisen but for the primary judge's conclusion on delegation, later overturned on appeal, and was not sufficiently separate to justify different treatment. Costs liability should be apportioned 75% to Innovate and 25% to the Council because Innovate had the primary interest in resisting Filetron's...

Jurisdiction
Australia
Judgment Date
04 April 2024
Procedural Posture
Costs Determination Following Appeal in Class 4 Land and Environment Court Proceedings / Court of Appeal Determining Reserved Costs on the Papers After Allowing the Appeal
Outcome
Costs orders made by Robson J on 16 October 2023 were set aside and substituted with orders apportioning Filetron's costs 75% to the first respondent and 25% to the second respondent, while preserving specified earlier Land and Environment Court costs orders.
Legal Topics
['party/party Costs' 'costs Following the Event' 'apportionment of Costs Between Respondents' 'costs Thrown Away by Amendment' 'land and Environment Court Act Ss 25 B and 25 C Applications' 'hardiman Principles' 'submitting Appearance']
['costs' 'planning and Environment' 'administrative Law'] ['party/party Costs' 'costs Following the Event' 'apportionment of Costs Between Respondents' 'costs Thrown Away by Amendment' 'land and Environment Court Act Ss 25 B and 25 C Applications' 'hardiman Principles' 'submitting Appearance']

Case Brief

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Procedural Posture

Costs Determination Following Appeal in Class 4 Land and Environment Court Proceedings / Court of Appeal Determining Reserved Costs on the Papers After Allowing the Appeal

Legal Issues

  1. 1 ["Whether Filetron's costs at first instance should be reduced to 50% up to 8 November 2022 to reflect claims or contentions abandoned when the summons was amended." "Whether Filetron's costs should include costs of the Council's 24 May 2023 notice of motion under s 25C of the Land and Environment Court Act 1979 (NSW)." "Whether the respondents' costs liability should be joint and several or apportioned 75% to Innovate and 25% to the Council."]

Ratio Decidendi

Filetron was the successful appellant and should have its costs. No further reduction of first instance costs was warranted for abandoned claims because Pepper J's 8 November 2022 costs thrown away order already addressed costs caused by the amendment, and a further reduction would double count. The costs of the Council's s 25C motion should follow the event because the motion would not have arisen but for the primary judge's conclusion on delegation, later overturned on appeal, and was not sufficiently separate to justify different treatment. Costs liability should be apportioned 75% to Innovate and 25% to the Council because Innovate had the primary interest in resisting Filetron's...

Court Disposition

Costs orders made by Robson J on 16 October 2023 were set aside and substituted with orders apportioning Filetron's costs 75% to the first respondent and 25% to the second respondent, while preserving specified earlier Land and Environment Court costs orders.

Orders

  • ['Set aside the costs orders made by Robson J in the Land and Environment Court on 16 October 2023.' "In lieu thereof, subject to order 3, order the first respondent to pay 75%, and the second respondent to pay 25%, of the appellant's costs of the appeal and of the proceedings in the Land and Environment Court."...