Griffiths v Bradshaw

The factors which are relevant to each of these submissions are as follows:

(a) The respondent's case, although unsuccessful, was arguable, the case ultimately turning upon questions of degree.

(b) The respondent acted honestly.

(c) The respondent offered to pay more than $100 000 towards the construction of a new road, in order to avoid this litigation.

(d) The respondent did not resist the proceeding in order to secure some financial gain.

(e) The case was appropriately conducted by each side at the trial.

(f) The respondent permitted the continued use of these roads during the progress of the proceeding.

(g) The respondent was motivated to refuse access for reasons which were unrelated to the use of the roads.

Of those factors, all but the last are in the respondent's favour. As to the last factor, the respondent was motivated by her grievance about the controversy relating to the bore. That may or may not have been a justifiable grievance and the court should not explore it in the present context.

With these matters considered, special circumstances are not established for the imposition of an order for costs against the respondent. However, the applicant has been successful and having conducted its case appropriately, should not have to pay costs. In my conclusion, there should be no order for the costs of the proceeding and there'll be an order as per that amended draft.