Background
Paul and Renata Etherington appealed from a Land and Environment Court decision in Class 1 proceedings involving North Sydney Council. On 20 July 2026, the Court of Appeal allowed the appeal only on an amended aspect of ground 3, set aside one remitter order, and remitted the matter to the Land and Environment Court to be determined according to law.
The Court nevertheless ordered the Etheringtons to pay the Council’s costs of the appeal. They applied within time to vary that order, contending that their success in having the appeal upheld on ground 3 meant costs should follow the event, or at least be apportioned.
The Court’s Holding
The Court dismissed the application to vary its earlier costs order and ordered the Etheringtons to pay the Council’s costs of the costs application. Their success on appeal was very limited: grounds 1 and 2 failed, leave was refused on ground 4, and ground 3 as originally pleaded did not succeed.
The only successful point arose from a mid-hearing amendment to ground 3. The original ground challenged the refusal of an exclusionary remitter order; the amendment instead challenged the restrictive terms of the remitter order to Commissioner O’Neill. Without that amendment, the appeal would have failed entirely.
The Council was entitled to its costs of preparing and running the appeal up to the amendment. Because the amendment occurred midway through a hearing lasting only a few hours and generated no readily identifiable additional costs, the appropriate order remained that the Etheringtons pay the Council’s costs of the whole appeal.
Key Takeaways
- Partial appellate success does not necessarily displace the ordinary costs result where most grounds fail.
- Success on a ground introduced by a late amendment may not justify an apportionment of costs.
- Leave granted on unsuccessful grounds because they raise arguable legal questions does not itself support a different costs order.
Why It Matters
The decision illustrates the practical approach to appellate costs in New South Wales. Courts assess the substance of the parties’ success and the costs actually attributable to successful and unsuccessful issues, rather than treating a technically allowed appeal as determinative.
For appellants, it also underscores the costs risk of identifying a successful point only through a late reformulation of a ground: where that point adds no separable costs component, the respondent may still recover the costs of the entire appeal.