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[2026] NSWSC 49
General information, not legal advice.
Supreme Court of NSW
2026-02-10
Pike J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hexagon Group Investments Pty Ltd v 13 Pine Road Pty Ltd [2026] NSWSC 49
Hearing dates: On the papers
Date of orders: Last submissions received 30 January 2026
Decision date: 10 February 2026
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision: The defendants pay the plaintiff’s costs of the proceedings.
Catchwords: COSTS — ordinary costs — where proceedings resolved without final hearing — where proceedings commenced to obtain landowner’s consent for development application under r 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) — easements — proposed extended width of driveway — alleged that the development application contained deficiencies — refusal of consent — proper exercise of discretion as to costs — whether defendants capitulated and acted unreasonably
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Environmental Planning and Assessment Regulation 2021 (NSW), r 23
Cases Cited: Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Texts Cited: Nil
Category: Costs
Parties: Hexagon Group Investments Pty Ltd (Plaintiff)
13 Pine Road Pty Ltd (First Defendant)
Cain Building Investments Pty Ltd (Second Defendant)
Representation: Counsel:
J Lazarus SC / R Size (Plaintiff)
Solicitors:
Hall & Wilcox (Plaintiff)
Thurlow Fisher Lawyers (First and Second Defendant)
File Number(s): 2025/00410135
Publication restriction: Nil
On 11 December 2025, I made the following order by consent:
Order that the First Defendant and Second Defendant consent to the Plaintiff lodging a development application for works at lot 3 of deposited plan 1212103 and lots 1 and 2 of deposited plan 1225172 consistent with the development application lodged with Cumberland City Council by the Plaintiff on 4 July 2025 bearing application number DA2025/0406.
This order reflected the substantive relief sought by the plaintiff (Hexagon) in its amended summons filed 27 November 2025 (A****mended S****ummons).
The parties were unable to agree on the costs of the proceedings and I made directions on 11 December 2025 for the parties to exchange submissions and any evidence on the question of costs.
I have received affidavit evidence on behalf of Hexagon and the first defendant (Pine) and second defendant (Cain), together with written submissions from all parties, and submissions in reply from Hexagon.
These reasons determine the question of costs of the proceedings.
Hexagon seeks orders that Pine and Cain pay its costs of the proceedings on the ordinary basis. It does so on the basis that Pine and Cain effectively surrendered after unreasonably compelling Hexagon to commence these proceedings.
Pine and Cain seek different orders. At the start of their submissions, it is contended that each party pay their own costs of and incidental to the proceedings, or in the alternative, if there were to be a costs order, that Hexagon pay Pine and Cain’s costs of and incidental to the proceedings.
The conclusion of their submissions reverses the position – Hexagon pay Pine and Cain’s costs, or in the alternative, that each party bear their own costs.
Pine and Cain contend, amongst other things, that the proceedings were commenced prematurely and were caused in material respects by Hexagon’s own conduct.
For the reasons set out below, the appropriate exercise of the court’s discretion is that the defendants should pay the plaintiff’s cost of the proceedings.
Having regard to the competing contentions of the parties, it is necessary to traverse, in a little detail, the background facts and what occurred during the short period of the proceedings.
Hexagon owns land at 10-12 Pine Road, Yennora, New South Wales (the Yennora Property). The Yennora Property adjoins properties owned by Cain at 26-28 Pine Road (the Cain Property) and by Pine at 18-20 Pine Road (the Pine Property).
The Yennora Property enjoys the benefit of an easement over the Cain and Pine Properties granting, relevantly, a right of access. The accessway is, on the ground, a common driveway providing access to all three properties from Pine Road.
In around May 2025, Hexagon decided to lodge a development application (DA) with the Cumberland City Council (Council) seeking approval of the construction of a 24-hour unmanned truck re-fueling facility on the common property and the widening of the common driveway on the Cain Property and Pine Property.
It is not in dispute that r 23(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) provides:
Development application may be made by-
(a) the owner of the land to which the development application relates, or
(b) another person, with the written consent of the owner of the land.
Because there are works affecting the accessway owned by 13 Pine Road (your client), landowner’s consent to development application lodgement from your client (13 Pine Road) is required. As you know this is an administrative requirement. Assessment of the development application will involve council notifying your client of the proposed development and give your client the ability to make submissions.
Can you please let us have a detailed explanation of the proposed works affecting the accessway owned by my client. In particular showing how it is now compared to what is proposed.
Please supply us with all information our client would reasonably require to understand exactly what it is that is proposed, including the increased changed use to your client’s property, etc.
Our client only wants to have one look at this. If the material is voluminous and possibly time consuming, our client may require your client to make payment, non-refundable on account of our legal costs in advising him regarding this matter.
Further information was provided by Hexagon’s solicitors by email dated 27 May 2025. Attached to that email was a briefing document that outlines “via diagrams and plans the proposed development at [the Yennora Property]. The executive summary of the proposed development shows the modest work that affects the accessway and confirms that Hexagon will carry out the works.” The email also offered a site inspection with a Hexagon consultant.
There were brief email communications between the solicitors in June in which the solicitors for Hexagon sought to ascertain Pine’s position in relation to consenting to the lodgement of the application.
The DA was lodged by Hexagon on 4 July 2025. The DA stated that it related to only one site address, being the Yennora Property and was for the “construction of an unmanned truck re-fueling station and ancillary signage, tree removal and civil works”. The application contained the following declaration:
I declare that I have shown this document, including all attached drawings, to the owner(s) of the land, and that I have obtained their consent to submit this application.
The DA also included within the plans submitted the proposed development of the Pine Property and Cain Property. The land to which the application related was said to be only the Yennora Property.
On 17 July 2025, Pine’s solicitors, apparently unaware that the DA had already been lodged, responded to Hexagon’s solicitors in the following terms:
Our client has carefully considered the DA, which would require alterations to the easement granting your client a right of way to access their property.
Our client has instructed us that it does not consent to the development proposal.
By email dated 28 August 2025, Hexagon’s solicitors responded to the 17 July 2025 email from Pine’s solicitors attaching a copy of the DA, together with the supporting documents. The letter contended that Pine’s refusal to consent to the DA infringed Hexagon’s right to enjoy the easement in circumstances where the increased use of the accessway that will result from the proposed development will not be excessive nor unreasonably interfere with the use of the accessway by Pine or the other parties with a right of way over the easement site. The letter invited Pine to provide its consent to the DA within 14 days of the date of the letter, failing which, the email warned that Hexagon will have no option but to commence proceedings in the Supreme Court of NSW seeking orders that Pine provide its consent to the development application.
On the same day, Hexagon’s solicitors wrote to Cain inviting Cain to provide its written consent to the DA within 14 days of the date of the letter.
On 11 September 2025, Pine’s solicitor wrote to Hexagon’s solicitor advising that Pine and Cain maintained their objection to providing consent to the proposed DA. The letter raised substantive concerns in relation to the proposed development.
On 26 September 2025, Pine’s solicitors lodged a formal objection with Council to the DA on behalf of both Pine and Cain. The grounds for objection included that Hexagon had not obtained Pine and Cain’s consent under r 23(1) of the EPA Regulation.
On 20 October 2025, Hexagon advised the Council that it was encountering difficulty reaching agreement with the adjoining owners as to consent.
On 24 October 2025, Hexagon commenced these proceedings, seeking substantive relief in the following terms:
Order that [Pine] and [Cain] consent to the development application bearing application number DA 2025/0406 lodged with Cumberland City Council by [Hexagon] on 4 July 2025 for works at Lot 3 of Deposited Plan 1212103 and Lots 1 and 2 of Deposited Plan 1225172.
For your information we enclose a copy of the objection letter dated 26 September 2025 submitted to Council on our clients’ behalf. The development application remains under consideration by Council and, as at the date of this letter, has not been determined.
In the circumstances, the relief sought by your client is premature, misconceived and serves no present utility. The issue of adjoining-owner consent falls within Council’s administrative assessment process and is not a matter warranting judicial intervention prior to any determination being made.
There is no statutory or equitable obligation on our clients to provide such consent, accordingly, the proceedings appear to be an abuse of process and should be discontinued.
The letter, which invited Hexagon to withdraw the summons, was met with a prompt rejection from Hexagon’s solicitors later that day contending that the position taken by Pine and Cain was misconceived.
On 3 November 2025, Hexagon received an email from the Council stating that the Council did not have the power to determine the DA without Pine and Cain’s consent. It invited Hexagon to withdraw the application. On 6 November 2025, Hexagon withdrew the DA stating that it was withdrawn at the request of Council “whilst we work to address the matters raised in Council’s request for information”.
On 27 November 2025, Hexagon amended its summons to reflect the fact that the DA had been withdrawn. The relief now claimed in the Amended Summons was in the form that I ultimately ordered, by consent on 11 December 2025.
Between 8 and 11 December 2025, solicitors for the parties exchanged emails which culminated in the solicitor’s for Pine and Cain conveying that Pine and Cain would consent to the relief sought by the Amended Summons, resulting in the parties executing the consent orders made on 11 December 2025.
In an email dated 8 December 2025, the solicitors for Pine and Cain stated, inter alia (emphasis added):
4 The Defendants have always made their position clear, which is that they do not consent or agree to the proposed development of the Plaintiff. The Defendants’ position has always been that whilst they are prepared to provide their consent to the lodgement with the appropriate authority of your client**’s application, they do not consent to the application itself and require that to be determined by the relevant authority**.
There was no dispute as to the relevant principles that I am required to apply.
It is accepted that costs are in the discretion of the Court: see s 98 of the Civil Procedure Act 2005 (NSW).
Both parties sought to defend their position by reference to the well understood principles that have been developed in circumstances where final orders are made in the absence of a hearing on the merits: see Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex p**arte Lai Qin (1997) 186 CLR 622 at 624-5; [1997] HCA 6.
The authorities were examined by Payne JA in Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681 at [25]-[30]. One of the authorities referred to by his Honour is Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302 where Davies AJA (with whom Mason P and Meagher JA agreed) observed at [5]:
When proceedings are brought to an end without a determination after a trial, the judge may find it difficult, even impossible, to make an award of costs. If the judge does make an award, it will generally be because the judge is satisfied that one party has had a substantial victory and the other a substantial loss, or that there has been a marked difference in the reasonableness of the actions taken by the parties, so that one party should be rewarded for its reasonable actions and the other party should suffer a detriment in costs. In One Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548 at 552-3, Burchett J expressed the point in this way:-
It is accepted that, in a case which terminates before there has been a hearing, the Court should not resolve the issue of costs by engaging in something in the nature of a hypothetical trial: Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 AT 201; Re Minister for Immigration and ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624. But this does not mean that the Court can never make an order for costs. Often, it will be unable to do so; but in other cases an examination of the reasonableness of the conduct of the parties, respectively, may provide the basis of an order, or ‘a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried’, as McHugh J put it in Ex parte Lai Qin at 625. His Honour added:
‘If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.’
Although his Honour thought this would ‘usually’ be so, he made it clear that he was not laying down an invariable rule. At the beginning of his discussion of the applicable principles (at 624), he referred to the discretionary nature of the power to order costs, and to the ‘general rule [that] the successful party is entitled to his or her costs’, and he said:
‘In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action.’
As Sackville J pointed out in Rizal v Minister for Immigration and Multicultural Affairs [1999] FCA 334 at [16], the remarks made by McHugh J evince ‘ a somewhat more flexible approach’ than that taken by the Court in Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 at 287, when it suggested that ‘there will be very few cases, where the issues will be sufficiently clear, in the absence of a hearing, for an order for costs to be made in favour of a party’. What is well established is that frequently the determining factor will be the reasonableness of the conduct of the parties, a matter which was emphasised in each of the decisions I have cited, and also in Reddy v Hughes (1996) 37 IPR 413; Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1999] FCA 119; and Australian Securities Commission v Berona Investments Pty Ltd 18 ASCR 772. In the last case, Cooper J commented, concerning the principles laid down in Australian Securities Commission v Aust-Home Investments (at 774):
‘These propositions are of assistance in focussing attention upon some of the relevant circumstances which should be considered in the exercise of the discretion to award costs where proceedings do not proceed to a final hearing. However they are not the only circumstances; nor are they intended to limit the discretion.’
In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court’s discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs.
Hexagon contended that, in the circumstances, this should properly be viewed as a case where Pine and Cain capitulated and behaved unreasonably.
Conversely, Pine and Cain contend that this is not a case of capitulation, but rather a case in which they provided consent only after Hexagon supplied what they characterise as an “appropriate” DA form, and that the proceedings were necessitated by deficiencies in Hexagon’s own conduct, including an alleged false declaration. Furthermore, the defendants submit that this is simply not a matter in which evidence was filed and progressed to a level which would allow the Court to make such a determination that refusal to provide consent was a substantial interference in the rights of Hexagon under the easement.
Pine and Cain further contend that Hexagon’s conduct was unreasonable.
The relevant objective facts may be summarised as follows:
(a) Hexagon first wrote to Pine (not Cain) before the DA was lodged, seeking its consent to lodgement. The letter pointed out that this only concerned the administrative act of lodgement, not the substantive question of whether Pine opposed the merits of the application. Further detail of the development was provided by Hexagon to Pine; (b) in the absence of a prompt response from Pine, the DA was lodged. It is perhaps debatable as to whether the application was misleading in relation to consent. I do not regard this as overly significant for the reasons set out below; (c) Pine then declined to provide its consent - unaware that the DA had been lodged; (d) Hexagon provided the DA to Pine’s solicitors, inviting them to reconsider and provide consent, failing which proceedings would be commenced; (e) Hexagon then wrote to Cain seeking its consent; (f) Pine maintained its objection to providing consent and Pine’s solicitors, now acting for Pine and Cain, lodged a formal objection with Council including the lack of consent to lodgement; (g) Proceedings were then commenced seeking consent to lodgement. However, Pine and Cain said the proceedings were misconceived and should be discontinued. The proceedings were maintained; (h) Council stated to Hexagon that it had no power to determine the DA in the absence of consent and suggested the DA be withdrawn, which promptly occurred; (i) the summons was then amended to seek consent to a new application consistent with the DA; and (j) on 11 December 2025 that consent was forthcoming together with a notation that the consent was to lodgement only, and not the application itself.
In light of this objective chronology, it is difficult to reach any conclusion other than that Pine and Cain have effectively capitulated in consenting to the Amended Summons. At all material times since before the commencement of proceedings, each of Pine and Cain have refused to provide consent to the lodgement of the DA, being something distinct from the merits of the application itself. This distinction was pointed out in the first letter to Pine’s solicitors who then came to act for Cain as well. The defendant’s consent was a precondition to the making of a DA under r 23. It was not open to Pine and Cain to withhold consent pending the lodgement of a DA that, by operation of the EPA Regulation, could not be made without that consent.
The fact that there has been a history of disputation between Hexagon on the one hand, and Pine and Cain on the other, leading to a level of distrust, may provide an explanation for what occurred, but this explanation does not assist Pine and Cain on the question of costs.
On the basis of the evidence relied on in this application, as set out above, it is not correct to say, Pine and Cain asserted in their 8 December 2025 communication, that Pine and Cain’s position has always been that, whilst they were always prepared to consent to lodgement, they do not consent to the application itself. The correspondence is to the contrary. Pine and Cain even relied on the lack of consent to lodgement in their formal objection to Council. This recharacterisation of their position is a retrospective attempt to justify a refusal that was, in substance, absolute.
Whilst Pine and Cain contend in their submissions that the Court is in no position to determine how the Court would have determined the proceedings, nothing of substance is said as to why Pine and Cain would have been entitled to withhold their consent to lodgement, as opposed to the substance of the application itself. The 8 December 2025 correspondence suggests that they were always willing to consent to lodgement – a statement somewhat inconsistent with there ever being a proper basis.
Considerable reliance appears to be placed by Pine and Cain on what they describe as a false declaration to Council in relation to owners’ consent. I am not prepared to find on this application, and do not find, that Hexagon made a false declaration to Council.
In any event, I do not regard the point as presently relevant on the question of costs. The suggestion that the proceedings were caused by Hexagon’s conduct reverses the true position. If Pine and Cain had provided their consent to lodgement of the DA (which could have been done after lodgement, prior to determination, and in a way that made it clear that they opposed the development itself), the proceedings would not have been necessary. Rather than providing consent, Pine and Cain lodged a formal objection, including on the grounds of lack of consent. Properly characterised, the defendants’ conduct was a capitulation after litigation commenced, not a reasonable response to new information or a mutual resolution of competing positions. Hexagon should not be deprived of their costs by a post hoc rationalisation of conduct that was unreasonable from the outset, and in circumstances where Hexagon have achieved a substantial practical success.
I am not satisfied that the fact that Hexagon has not particularised the quantum of its costs as being presently relevant. No application for a gross sum is made. Indeed, Pine and Cain oppose any costs order at all. The quantum of costs is a matter the parties can seek to agree and failing agreement can either be the subject of a gross sum application or dealt with by the ordinary assessment processes.
The question of whether those costs may include the costs of a traffic expert, as referred to in Pine and Cain’s submissions, is similarly irrelevant on the question of who should be ordered to pay the costs of the proceedings.
I am also not satisfied that any different order should be made in relation to the filing of the Amended Summons. The need for the Amended Summons arose squarely from Pine and Cain refusing to consent to lodgement of the DA.
For these reasons, the appropriate costs order in the circumstances is that Pine and Cain pay Hexagon’s costs of the proceedings.
The Court orders that the defendants pay the plaintiff’s costs of the proceedings.
**********
Hexagon Group Investments Pty Ltd
13 Pine Road Pty Ltd [2026] NSWSC 49
(2018) 97 NSWLR 681
(1997) 186 CLR 622
(2000) 101 FCR 548
(1993) 44 FCR 194
(1997) 80 FCR 284
(1996) 37 IPR 413