Menangle Sand & Soil Pty Ltd v Wingecarribee Shire Council & Ors

The applicant in the present case filed its Notice of Discontinuance some two weeks after the last of the statements of issues were filed. The appeal had not yet been set down for hearing. In the face of two additional legally represented respondents and expanded set of issues, the applicant's conduct in reassessing its position and filing a timely notice of discontinuance was reasonable. None of these matters were of the Applicant's making or within its control. Even in those classes of case in which costs generally follow the event, where it appears that the parties have acted reasonably in commencing or defending the proceedings and the conduct of the parties continued to be reasonable until the proceedings came to an end, then the proper exercise of the cost discretion will usually mean that the court will make no order as to the costs of the proceedings (Re: Minister for Emigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 625, per McHugh J). This approach, it seems to me, applies with even greater force in planning and buildings appeals to which the Practice Direction applies.

1. The third respondents' notice of motion for costs is dismissed. 2. The third respondents must pay the applicant's costs of the notice of motion.