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The applicants made such an application in time. They sought an order requiring the Council to pay their costs instead. In the alternative, they sought apportionment of costs to reflect their success on ground 3 ([2], [7]). The Council opposed the application and argued that the original costs order should stand ([8], [12]).

The procedural history of ground 3 was central. As originally pleaded, it challenged the primary judge’s decision not to make an exclusionary remitter order, meaning a remitter to a Commissioner other than Commissioner O’Neill ([8], [17]). During the appeal hearing, in response to questions from the Court, the applicants amended ground 3. The amended ground challenged the terms of the remitter order to Commissioner O’Neill, rather than seeking an exclusionary remitter order instead ([8], [18], [20]). The Court allowed the amendment, and the applicants succeeded on that amended issue.

The applicants did not succeed on grounds 1 and 2, despite being granted leave to appeal on them. They did not succeed on ground 3 as originally framed, and leave to appeal on ground 4 was refused ([14]-[17]). The Court dismissed the costs-review application and ordered the applicants to pay the Council’s costs of that application ([22]-[23]).

Why the court decided this way

The Court focused on the extent and circumstances of the applicants’ success. It described the success as “very limited” and emphasised that the applicants failed on every ground as originally pleaded ([14]). Its reasoning distinguishes between obtaining leave to argue a ground and succeeding on that ground. Leave was granted on grounds 1 and 2 because they raised statutory construction issues that had not been addressed at appellate level, concerning s 4.55(2) of the Environmental Planning and Assessment Act 1979 (NSW) and s 22 of the Land and Environment Court Act 1979 (NSW). But the Court rejected the applicants’ construction and application of those provisions ([15]). The Court said that the grant of leave made no difference to costs because those grounds failed ([15]).

The decisive success came from the amendment to ground 3 made during the hearing. The Court accepted the Council’s point that, without that amendment, the appeal would have wholly failed ([19]). The amendment materially changed what ground 3 challenged: the original version questioned the decision not to exclude Commissioner O’Neill, while the amended version challenged the terms of the remitter order itself ([20]). The parties’ written and oral submissions had been prepared to address the original ground, not the amended one ([20]).

The Court then considered the timing and practical cost of the amendment. It was made midway through a hearing that lasted only a few hours. The Court could not identify additional hearing time spent on the amended issue over and above the time that would have been spent on the original grounds ([19]). That was why it concluded the Council was entitled to its costs of the whole appeal, rather than only costs incurred before the amendment ([19]).

The applicants argued that the amendment did not substantially alter the case the Council had to meet. The Court rejected this because the two versions of ground 3 raised different challenges, and the parties had prepared for the original version ([20]). The applicants also argued that the Council would have opposed the appeal even if the amendment had been made earlier. The Court accepted that the Council would still have defended the proceedings, but held that this did not answer the relevant costs point. The applicants continued to pursue grounds 1, 2 and 4, and the Council reasonably and successfully defended those grounds ([21]).

The Court therefore declined to vary order 6. Its reasoning is specific to the combination of limited success, the nature and timing of the amendment, the preparation devoted to the original grounds, and the absence of readily identifiable extra hearing time attributable to the successful amended ground ([19]-[22]).

Before and after state of the law

The judgment does not purport to reformulate the general law of costs or announce a new costs test. The applicants invoked UCPR r 42.1, submitting that costs should follow the event unless the Court considered another order appropriate ([3]). They described the relevant event as the practical result of the leave application and appeal, and argued that they had succeeded because the appeal was upheld on ground 3 ([3]-[4]). The Council’s response was that the applicants’ success was limited and resulted from a late amendment ([8]-[12]).

The Court’s decision applies costs discretion to this procedural history. It does not say that success on a single ground can never justify costs, nor that a late amendment invariably results in the other party receiving all its costs. Instead, it explains why those considerations produced that result here: the original case failed, the amendment changed the issue, the respondent’s preparation had addressed the original grounds, and the Court could not identify extra hearing time spent on the amendment ([14], [19]-[20]).

Several authorities were cited by the parties in support of their submissions. The applicants relied on Doppstadt, AQC Dartbrook, Canterbury-Bankstown Council and James in arguing about the event and apportionment ([3]-[7]). The Council relied on Beoco, Leading Edge Events and HP Mercantile concerning late amendments, and on Elite Protective Personnel, Bostik and Doppstadt concerning apportionment ([9], [12]). The judgment records those authorities and submissions, but the supplied text does not contain a detailed analysis of their facts or holdings by the Court in this costs review. It would therefore be unsafe to attribute a broader rule from those cases to this judgment.

The immediate “after” state is clear: order 6 remained in force, the applicants were liable for the Council’s costs of the appeal, and they also had to pay the Council’s costs of the review application ([22]-[23]). The judgment does not state that the substantive statutory provisions were newly interpreted in this costs proceeding. It records that their construction was addressed in the earlier appeal and that the applicants’ arguments on grounds 1 and 2 failed ([15]).

Key passages with plain-English translation

At [14], the Court says the applicants had “very limited success” and did not succeed on any originally pleaded ground. In plain English, the Court looked beyond the fact that the appeal was partly allowed and considered how that success came about. It treated the amended version of ground 3 as distinct from the case originally advanced.

At [15], the Court explains that leave on grounds 1 and 2 did not make a difference to costs because the grounds failed. In plain English, permission to argue a point is not the same thing as winning it. The Court considered the result on those grounds, rather than treating the grant of leave as a success in itself.

At [19], the Court states that the Council was entitled to costs of the whole appeal because the amendment was made midway through a short hearing and no readily identifiable time was spent on it over and above the time spent on the original grounds. In plain English, the Court did not find a practical basis for separating the costs of the successful amendment from the costs of the unsuccessful appeal case.

At [20], the Court rejects the applicants’ argument that the amendment did not substantially alter the case. The original ground challenged the refusal to exclude a particular Commissioner; the amended ground challenged the terms of the remitter order. In plain English, the Court regarded those as different issues, and noted that the parties had prepared their written and oral arguments for the original one.

At [21], the Court says the Council’s likely opposition to an earlier amendment was “irrelevant” in the circumstances. In plain English, the Council’s likely response to ground 3 did not change the fact that the applicants kept pursuing other grounds that the Council successfully defended.

What fact patterns trigger this precedent

The judgment is most directly relevant to costs disputes after an appeal where the successful point was introduced by amendment during the hearing. The important features here were that the original grounds failed, the amendment changed the challenge being made, and the other party had prepared for the original case ([14], [19]-[20]).

It is also relevant where a party argues that leave granted on unsuccessful appeal grounds should count in its favour when costs are assessed. This Court expressly treated the grant of leave on grounds 1 and 2 as insufficient to change the costs outcome because the applicants lost on those grounds ([15]).

The reasoning may also be pertinent where a party seeks to apportion costs between successful and unsuccessful issues. The applicants argued that ground 3 was separable from grounds 1, 2 and 4 ([7]). The Court’s reasons for refusing variation were practical: the amendment was made mid-hearing, the appeal lasted only a few hours, and no readily identifiable additional time was attributable to it ([19]). This decision does not establish that apportionment is unavailable whenever a party has mixed success. Rather, it shows why apportionment was not adopted on the facts described in this judgment.

The decision should be read in its procedural setting: an application under UCPR r 36.16 to review an existing costs order, following a particular appeal and a late amendment to an appeal ground ([1]-[2], [22]-[23]). The judgment does not determine the costs consequences of every late amendment or every case of mixed success.

How later courts have treated it

The supplied judgment contains no later judicial treatment of this decision. It is dated 21 August 2026, and the materials provided include only this judgment and references to earlier authorities. On that source material, it is not possible to say whether later courts have followed, distinguished, applied or otherwise considered Etherington v North Sydney Council (No 2).

The earlier cases identified in the judgment should not be confused with later treatment. They were cited in submissions about the event, apportionment and late amendments ([3]-[12]). The Court’s own decision in this application is grounded primarily in its assessment of the procedural facts: which grounds failed, what the amendment changed, when it was made, and whether additional costs could be identified ([14]-[21]). Any account of subsequent treatment would require later judgments not included in the supplied material.

Still-open questions

The judgment does not specify a general method for quantifying costs where some issues succeed and others fail. It explains why no practical apportionment was made here, but does not set out a formula for cases where issue-specific costs are readily identifiable ([19]-[20]).

Nor does it define a general threshold for when an amendment “substantially alters” the case a respondent must meet. The Court’s conclusion rested on the concrete contrast between the original and amended versions of ground 3 and the fact that submissions had been prepared for the original version ([20]).

The judgment also does not decide what costs order would be appropriate if an amendment were made earlier, if substantial additional hearing time were devoted to the new issue, or if the successful amended issue accounted for a clearly separable share of preparation and hearing costs. The Court’s response to the earlier-amendment argument was tied to the applicants’ continued pursuit of grounds 1, 2 and 4 and the respondent’s success in defending them ([21]).

Finally, the judgment does not provide the full reasons from the substantive appeal, [2026] NSWCA 137, beyond the procedural summary and the account of the grounds in this costs judgment. The statutory construction issues under the Environmental Planning and Assessment Act 1979 (NSW) and the Land and Environment Court Act 1979 (NSW) are mentioned only to explain why leave was granted and why the applicants ultimately failed on grounds 1 and 2 ([15]). This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on it, have a qualified Australian lawyer check it.