Costs – Section 457 Sustainable Planning Act 2009
– Section 4.1.23 Integrated Planning Act 1999 – where
applicants/co-respondents substantially (but not wholly) successful
in an application to strike out appellant's appeal –
whether elements of the appeal were instituted to delay or obstruct
and/or were otherwise frivolous or vexatious – whether costs
should be awarded on indemnity basis or standard basis –
where it was determined that a number of grounds of appeal were
manifestly unarguable and disclosed no reasonable cause of action,
whether that constituted frivolous or vexatious proceedings for the
purposes of awarding costs
Facts: This was an application for costs
brought by the applicants / co-respondents following their largely
successful application to have the respondent / appellant's
grounds of appeal struck out (for all but one ground of appeal).
The applicants / co-respondents sought costs for the hearing, as
most of the grounds were found to be manifestly unarguable and
disclosing no reasonable cause of action. The relevant tests for
awarding costs related to whether the proceedings were instituted
to delay or obstruct, or were frivolous or vexatious.
The one issue that was not struck out (flooding) was the major
issue and the one most likely to occupy the majority of the hearing
time. Of the four grounds of appeal that were struck out, the
respondent / appellant was aware of evidence relating to two of the
issues (survey and traffic issues) that should have made it clear
that he had no reasonable prospect of succeeding. Furthermore, he
did not seriously challenge this evidence, yet continued to press
the two grounds of appeal.
The applicants / co-respondents sought indemnity costs.
Decision: The Court held that:
section 457 of the Sustainable Planning Act 2009
applied to the application for costs, rather than section 4.1.23 of
the Integrated Planning Act 1997, which both parties
relied upon. The outcome of the application would have been the
same regardless of which legislation was applicable
the general purpose of a costs order was not to punish but to
the lack of an entirely successful strike out application does
not preclude the recovery of costs. However the grounds of appeal
must be more than just unsupportable, but rather must be frivolous
the appeal was initiated for bona fide reasons, out of a desire
to act in the public interest. Furthermore, the court should be
cautious in ordering costs against citizens as there is a public
interest in not discouraging citizens with genuine grounds from
the respondent / appellant pursued two grounds of appeal
despite having information that showed them to be hopeless causes,
and therefore acted in a frivolous, if not vexatious way, which
enlivened the court's discretion to award costs against him for
those two grounds
the costs order against the respondent / appellant for the two
frivolous grounds should be made on the standard basis, not on an
indemnity basis. For indemnity costs to be awarded, more serious
misconduct was generally required.
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