Building Appeals Board Upholds the General Rule that Each Party Bears its Own Costs

An applicant successfully appealed against Stonnington City Council, and then made a costs application of $60,428.81 against council, suggesting that special circumstances existed to justify overriding the general rule that each party bears their own costs.

Council subsequently engaged Russell Kennedy Lawyers to act for it in respect of the costs application made against it and in its Defence to Costs Claim submitted that:

• the applicant had not satisfied any just or reasonable basis for the Building Appeals Board to depart from the usual position on costs;
• an assertion that council persisted in maintaining a hopeless case and continued proceedings in wilful disregard of the known facts and clearly established law was categorically rejected;
• Council was required to refuse to give its consent under clause 4A(2) of Schedule 2 to the Building Act 1993 (Vic) (Act); and
• section 28 of the Act, which the applicant relied upon in her Costs Claim, was not applicable in the circumstances as the council is not capable of being the relevant building surveyor and the issue of a building permit is not a council power under the Act.

77. The Board has ‘de novo’ powers on appeal which provides us with the power to consider the appeal on the evidence presented and the Board is permitted to consider matters not raised before the decision under appeal was made. We are not judging whether or not the Respondent’s decision was correct in fact and law but re-hearing the matter. It is not correct at law to make an award of costs on a punitive basis.
78. We find that there was a legitimate issue to be resolved, namely whether the extent of overlooking would significantly impact on the amenity of the existing dwelling on a nearby allotment and or any associated secluded private open space.
79. We find that simply being successful in the appeal does not constitute special circumstances.
80. We find that the Respondent conducted the proceeding in the manner expected of a model litigant.
81. Having assessed all of the material before us, we find that there are no special circumstances that make it just to warrant a departure from the rule that each party bears its own costs and the application is refused.

The outcome also demonstrates that legal representation may be engaged at any stage in a proceeding. Indeed there may be circumstances in which a technical appeal is run by Council and lawyers are engaged after the conclusion of the substantive proceeding to prepare costs submissions which relate to questions of law.