Application of Willoughby City Council (as manager of the Talus Reserve Trust) and anor

[2016] NSWSC 1935

Supreme Court

New South Wales

Medium Neutral Citation:	Application of Willoughby City Council (as manager of the Talus Reserve Trust) & anor [2016] NSWSC 1935
Hearing dates:	5 December 2016
Date of orders:	05 December 2016
Decision date:	05 December 2016
Jurisdiction:	Equity - Corporations List
Before:	Brereton J
Decision:	Application to set aside interlocutory costs order previously made refused.
Catchwords:	COSTS – application to set aside interlocutory costs order previously made – where affidavit before the Court was later conceded to be erroneous in one respect – where error was immaterial to basis on which costs order was made – application refused
Category:	Costs
Parties:	Willoughby City Council (as manager of the Talus Reserve Trust) (first plaintiff) Talus Street Reserve Trust (second plaintiff) Minister for Crown Lands (first intervener) Jaques Morschel Owens, Michael Scott Berneschi, Harriet Ingrid Owens, Madeleine Rose Owens & Desley Jane Creedy (second interveners) Cr John Hooper (applicant)
Representation:	Counsel: Cr John Hooper (applicant, in person) A C Harding (plaintiffs) T Wong (first intervener) J B Owens (solicitor) (second interveners)   Solicitors: Pikes & Verekers (plaintiffs) Crown Solicitor’s Office (first intervener) J B Owens (second interveners)
File Number(s):	2015/046210

Judgment (ex tempore)

1. HIS HONOUR: The hearing of these proceedings took place on 23 November 2015, when judgment was reserved. On 21 December 2015, Councillorr Hooper filed a motion whereby he sought leave to file an affidavit of 20 December 2015, both in support of the motion and as evidence in the substantive proceedings, and (in effect) that the proceedings be re-opened to receive and consider it. On 3 February 2016, I dismissed that motion and ordered that Mr Hooper pay the costs of the motion. I did so, as explained in the judgment delivered on that occasion, essentially because the application failed, and prima facie the unsuccessful applicant should pay the costs. Although a factor that mitigated against that consequence was that the motion was brought by Mr Hooper in the belief that it was in the public interest, a countervailing factor was that it was brought belatedly, after the substantive hearing had been completed and judgment had been reserved and when, had Mr Hooper wished to intervene in the proceedings, he could have done so at a much earlier stage.

2. When that judgment was given on 3 February, there was before me an affidavit of Marnie Hillman of 3 February 2016, in which she deposed that on 25 February 2015 a copy of the summons and statement of facts filed in the proceedings had been sent by email to each councillor (including Councillor Hooper) and that, on 14 October 2015, a copy of the supplementary statement of facts had been sent by email to each councillor. Subsequently, Ms Hillman swore a further affidavit in which she explained that the assertion that the supplementary statement of facts had been sent to each councillor (including Councillor Hooper) was incorrect, and that in fact an email had been sent to the councillors which stated that the supplementary statement of facts had been filed, identified two main features of the supplementary statement of facts, and indicated that if councillors so wished, they could request a copy of the supplementary statement of facts.

3. Cr Hooper now applies to have the costs order against him set aside, n the basis that the evidence then before the court, in the form of Ms Hillman’s affidavit of 3 February 2016, was incorrect.

4. As it turns out, the email of 14 October 2015 and the supplementary statement of facts have nothing at all to do with Mr Hooper's belated interest in the proceedings. It was when the documents contained in exhibit MT1 – which was referred to, not in the supplementary statement of facts, but in the original statement of facts – came to his attention, that he perceived the need to take some action. The original statement of facts, which referred to and exhibited MT1, had been in his possession since 25 February 2015. Although in his recent affidavit, Mr Hooper focuses on the issue about pages 113 to 116 of MT1, the evidence which he sought to adduce pursuant to his motion of 21 December 2015, went far beyond those particular matters. As it seems to me, the fact which was inaccurately deposed to by Ms Hillman in her 3 February 2016 affidavit and has been corrected in her subsequent affidavit, is completely immaterial, in the way things have transpired, to the course of the proceedings, to Mr Hooper's attempted intervention in them, and thus to the basis on which the costs order of 3 February was made.

5. In my view, no basis has been demonstrated to re-open or vary the order of 3 February 2016, which will therefore stand.

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Decision last updated: 10 April 2017