Canterbury-Bankstown Council v Hamptons Property Services Pty Ltd (No 2) [2025] NSWLEC 86 | Case summary

Canterbury-Bankstown Council v Hamptons Property Services Pty Ltd (No 2) [2025] NSWLEC 86 | Case summary | Zoe

The Court of Appeal has recently identified in ABC Insurance Pty Ltd v The Law Society of New South Wales [2025] NSWCA 182 at [11] some of the special circumstances in respect of which leave may be sought to make submissions after the outcome is known. None of these special circumstances were relevant in this appeal.
In accordance with this ordinary practice, I asked the parties at the hearing of the appeal to make submissions as to the costs order the Court should make on alternative assumptions of what might be the outcome of the appeal. The parties made the submissions they wished to make in response. Hamptons’ senior counsel accepted that the usual order in a s 56A(1) appeal is that costs follow the event but requested that if the Council’s appeal were to be upheld in a way which was not consistent with the Council’s submissions, Hamptons might be given “an opportunity to read the judgment and see what the position is, and then make submissions on remitter and costs”: Transcript 01/05/2025 at 55.
Hamptons said that it believed that by making this statement it “was reserving to itself the right to make submissions on costs once judgment was published”: Respondent’s Written Submissions of 12 July 2025 at [22]. As the authorities to which I have referred make plain, a party cannot reserve to itself a right to make submissions on costs once a judgment is delivered. The occasion to make submissions on costs is the hearing of the appeal, especially when the Court asks parties to make submissions on costs at the hearing.
The fact that a party fails to make, when it had the opportunity to do so, all of the submissions as to costs that it later says it would wish to make is ordinarily not a reason to set aside or vary the costs order the Court does make. There is a public interest in maintaining the finality of litigation. That public interest requires that the power in UCPR r 36.16 to set aside or vary an order be exercised “sparingly and with caution, having due regard to the importance of the finality of litigation”: Majak v Rose (No 5) [2017] NSWCA 238 at [13]. Caution is especially called for where the variation sought would have the practical effect of the re-opening the proceedings to enable a significant rehearing of an issue: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302-303, 308-311; [1993] HCA 6. As Mason CJ said in the last-mentioned case at 303:

Exercise of the Court’s power under UCPR r 36.16 to set aside or vary an order ordinarily requires the party seeking reopening of the appeal to show that the Court proceeded on a misapprehension as to the facts or the law; there is some matter calling for review; or the interests of justice so require: Autodesk Inc v Dyason (No 2) at 302; D**e L v Director-General, NSW Department of Community Services (No 2) at 215; Majak v Rose (No 5) at [12]-[19]; Dickson v Petrie (No 2) [2025] NSWCA 176 at [7].
Hamptons did not suggest that either of the first two circumstances applied. The Court, in making the usual order that costs follow the event, was not under a misapprehension as to the facts or the law, and there was no matter calling for review of the Court’s decision and order as to costs. Hamptons did, however, submit that the interests of justice required reopening of the costs order. Hamptons said it had misunderstood that it would be given an opportunity to make submissions as to costs after judgment had been delivered.
As I have noted, both parties were given an opportunity at the hearing of the appeal to make whatever submissions they wished to make on the costs order the Court should make, addressing the foreseeable possible outcomes of the appeal. A party’s failure to do so is attributable to the fault of that party, not the Court. This is a factor tending against exercising the power to reopen the appeal to allow further argument on the issue of costs.
Nevertheless, as the High Court recognised in De L v Director-General, NSW Department of Community Services (No 2) at 215, “accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice.” Whilst Hamptons’ misunderstanding at the hearing of the appeal that it could reserve to itself the right to make submissions as to costs after judgment was delivered might not be regarded as an accident or oversight, I consider that not allowing the reopening of the appeal to provide an opportunity for further argument on the issue of costs will occasion an injustice to Hamptons. Reopening the appeal will not lead to a significant rehearing of the issue of costs. No further evidence is needed. The further submissions the parties wish to make on the issue of costs are confined. The submissions have been reduced to writing with only a brief supplementation by way of oral submissions. The reopening of the appeal will not prejudice the Council. The Council does not oppose the Court re-opening the appeal to allow Hamptons the opportunity to make further submissions on the costs order the Court should make.
In these particular circumstances, I will allow the reopening of the appeal to provide the parties with the opportunity for further argument on whether the costs order I made should be varied in the way sought by Hamptons.
Hamptons’ argument was that the general rule that costs follow the event should be applied to each ground of appeal. The “event” should be understood as the outcome of each ground, not the outcome of the appeal as a whole. Hamptons referred to the observation of Schmidt J in John Conrad Hansen trading as Derrawee Pastoral Company v Monterey (Coolah) Pty Limited [2012] NSWSC 1383 at [29]:

Hamptons noted that the Council was successful on only one substantive ground (the related grounds 2 and 3) and was unsuccessful on two of the substantive grounds (grounds 1 and 4). The Council should, therefore, only be awarded its costs in relation to the ground on which it was successful and not in relation to the grounds on which it was unsuccessful. This supports an apportionment of 30% of the costs.
Hamptons submitted that the grounds on which the Council was unsuccessful (grounds 1 and 4) were clearly separable from the grounds on which the Council was successful (grounds 2 and 3). The resolution of grounds 2 and 3 did not depend on the resolution of grounds 1 and 4.
Hamptons submitted that in terms of the parties’ pre-hearing preparation, including written submissions, and the time taken at the hearing, grounds 1 and 4 occupied the bulk of the work and time, compared to grounds 2 and 3.
Hamptons submitted that in circumstances where the Council was unsuccessful on grounds 1 and 4, the issues raised by those grounds were clearly dominant and severable and those issues occupied the bulk of the hearing time, it would not be just and reasonable for it to pay all of the Council’s costs. Instead, it should be ordered to pay only 30% of the Council’s costs of the appeal.
The Council submitted that the usual order for costs – that costs follow the event – should be made. The expression “follow the event” is generally accepted to refer to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15]. The particular claim in this proceeding is the appeal under s 56A(1) of the Court Act. The appeal is either upheld or dismissed. The disposition of the appeal is the event, not the resolution of each of the grounds of appeal. The Council was successful in the ultimate outcome of the appeal, notwithstanding that the Council did not succeed on all of the grounds of appeal. As Robson J stated in Willoughby City Council v Blanc Black Projects Pty Limited (No 2) [2023] NSWLEC 144 at [18]:

The Council submitted that the basis for an apportionment of costs based on the issues on which an applicant succeeds or fails involves the principle of fairness. The Court would not ordinarily apportion costs unless the respondent can establish that “there is some discrete and easily separable and digestible part of the case upon which it succeeded, and even then, where the element of injustice or unfairness can clearly, and unequivocally, be determined”: Appellant’s Written Submissions of 1 July 2025, [10].
The Council submitted that grounds 2 and 3, which the Court upheld, could not be characterised as discrete and easily separable from grounds 1 and 4. The Council noted that the nature of the appeal under s 56A(1) of the Court Act necessarily limited the grounds of appeal to questions of law, not questions of fact; the materials in the appeal book that were considered in the hearing and disposal of the appeal were limited; and the parties’ arguments at the hearing of the appeal took only one day. In these circumstances, the Council submitted that it is not accurate to say that grounds 1 and 4 were clearly dominant and severable from the other grounds of appeal.
The Council referred to the statement of Hamptons’ solicitor, Mr Newman, in paragraph 16(a) of his affidavit in support of Hamptons’ application to reopen the appeal that “it is not possible to assign specific legal costs or barristers’ fees to each of the grounds of the Amended Summons”: Appellant’s Written Submissions at [12](e).
The Council disputed that the way it had argued its case at the hearing of the appeal amounted to unreasonable conduct that would make an apportionment of costs fair and reasonable. The Council spent more time in oral argument at the hearing in explaining grounds 1 and 4, than grounds 2 and 3, but that was because those grounds, especially ground 1, had not previously been determined authoritatively by the Court. The character and operation of s 49 of the Local Government Act 1993 (NSW) had not been determined before. The distinction between the grant of a development consent to a subdivision and the consequent but separate operation of a provision such as s 49 of the Local Government Act to effect the dedication of a subdivided lot was a nuanced issue that had not been considered by the Court but has now been explained decision in this appeal. The Court explained and distinguished earlier decisions of the Court and the Court of Appeal concerning the grant of development consent requiring the dedication of land as a public reserve.
The Council submitted that both grounds 1 and 4 were clearly arguable, having regard to the particular way in which the Commissioner expressed her reasons for decision on the issues raised by those grounds. The Court’s reasons for rejecting grounds 1 and 4 were different to how the Commissioner dealt with the issues raised by those grounds and Hamptons’ arguments on the appeal in relation to those grounds. The Council did not succeed in establishing grounds 1 and 4, but not because of Hamptons’ arguments.
I consider that Hamptons has not established that an apportionment of costs is appropriate in the circumstances of this appeal. The mere fact that an appellant does not succeed on all of the grounds raised in an appeal under s 56A(1) of the Court Act is not sufficient by itself for the Court to depart from the usual rule that costs follow the event and instead award costs only with respect to the grounds on which the appellant did succeed. On an appeal under s 56A(1) of the Court Act, as with other proceedings, a court should ordinarily award the costs of the proceedings to a successful party without attempting to differentiate between the issues on which the party succeeded and the issues on which the party failed: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]; Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]; Sze Tu v Lowe (No 2) [2015] NSWCA 91 at [40].
Nevertheless, the Court has a discretion under s 98(1) of the Civil Procedure Act 2005 (NSW) to apportion the costs to be awarded having regard to the issues on which a party failed. Factors influencing the exercise of the discretion to apportion costs include:

In this appeal, I do not consider that the grounds on which the Council did not succeed are clearly dominant or separable from the other grounds on which the Council succeeded; occupied such significant time at the hearing of the appeal that separate identification and estimation of the time spent on the grounds is realistic; lacked real merit; or were unreasonably raised or pursued.
Grounds 1 and 4 did raise different errors on questions of law to those raised by grounds 2 and 3. The grounds therefore needed to be separately addressed by the parties in their submissions, both written and oral. Addressing these questions of law, however, primarily involved construction of the statutory provisions concerned and the Commissioner’s reasons for decision, and only concerned peripherally the evidence in the court below. The legal arguments could be, and were, put by the parties in a measured and sequential manner within the timeframe of the hearing. Argument on all grounds was completed by each party in a couple of hours each, so that the appeal was heard in one day. Argument on grounds 1 and 4, on which the Council did not succeed, did not unreasonably prolong the hearing of the appeal. The appeal would have been listed and conducted as a one day hearing, irrespective of whether the Council had only raised and pursued grounds 2 and 3, on which the Council succeeded, and not also grounds 1 and 4, on which the Council did not succeed.
As Hamptons’ solicitor pragmatically observed, it is not possible to assign specific legal costs or barristers’ fees to each of the grounds of appeal. The grounds were addressed as a whole by the parties in their written and oral submissions.
Although I determined that grounds 1 and 4 were not established, the grounds were clearly arguable especially having regard to the way in which the Commissioner expressed her reasons on the issues raised by those grounds. The issues raised by ground 1 concerning s 49 of the Local Government Act had not been decided by a judge of the Court before, and the manner in which the Commissioner dealt with the issues gave rise to the question of law in ground 1. The ground did not lack real merit and the Council did not unreasonably raise or pursue ground 1. The Court’s reasons for rejecting ground 1 differed to the reasons of the Commissioner and the arguments of Hamptons in relation to the issues raised by ground 1.
Ground 4 was more prosaic. The ground concerned the construction and application of the floor space ratio development standards in cl 4.4 and cl 4.5 of CBLEP. Again, however, the manner in which the Commissioner expressed her findings on the floor space ratio development standards gave rise to the question of law in ground 4. The Court’s reasons for rejecting ground 4 differed from the Commissioner’s reasons and Hamptons’ arguments regarding the floor space ratio development standards. The ground did not lack real merit and the Council did not unreasonably raise or pursue ground 4.
As the Court of Appeal has observed on a number of occasions, “[w]here there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation”: Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 at [11], quoted in Bostik Australia Pty Ltd v Liddiard (No 2) at [38], Sze Tu v Lowe (No 2) at [40] and Dickson v Petrie (No 2) at [6].
Based on my impression and evaluation of the grounds of appeal and the conduct of the hearing of the appeal, I do not consider apportionment of the costs based on the grounds that were successful and unsuccessful is appropriate. The usual order for costs should be made so that the party who was unsuccessful in the ultimate outcome of the appeal, Hamptons, should pay the costs of the party that was successful in the ultimate outcome of the appeal, the Council. That is the order I made in disposing of the appeal on 8 May 2025. That order should stand. I therefore dismiss Hamptons’ notice of motion filed on 21 May 2025 seeking to vary that order.
This leaves the question of costs of Hamptons’ notice of motion. I consider there should be no order as to costs in relation to Hamptons’ notice of motion. I have allowed the reopening of the appeal to give Hamptons the opportunity to make further arguments as to the costs order that should be made. This course was not opposed by the Council. By doing so, the parties have been put back in the position they would have been in at the hearing of the appeal to argue the issue of the costs of the appeal. The costs of arguing this issue on the hearing of the notice of motion, rather than at the hearing of the appeal, should not be the subject of a separate order for costs.
I make the following orders:
Dismiss the respondent’s notice of motion filed on 21 May 2025.
Make no order as to costs of the notice of motion with the intention that each party pays their own costs.

Canterbury-Bankstown Council v Hamptons Property Services Pty Ltd (No 2)

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