Balcombe v Nambucca S.C

[1999] NSWLEC 57

Land and Environment Court

of New South Wales

CITATION:

Balcombe & Anor -V- Nambucca S.C. & Ors [1999] NSWLEC 57

PARTIES

Applicants:
David James Balcombe and Florence Mary Balcombe

First Respondent:
Nambucca Shire Council

Second Respondents:
Anthony Carl Smith, Adrienne Susann Smith and Rayweb Pty Ltd (t/a Midcoast Trucks and Commercials)

NUMBER:

40256 of 1997

CORAM:

Talbot J

KEY ISSUES:

:- - in class 4

LEGISLATION CITED:

- in class 4

DATES OF HEARING:

03/15/1999

DATE OF JUDGMENT DELIVERY:

03/17/1999

LEGAL REPRESENTATIVES:

Applicants:
Mr K Roser (Barrister)
Solicitors:
Richard S Savage

First Respondent:
Mr W O'Rourke (Solicitor)
Solicitors:
Deacons Graham & James

Second Respondent:
n/a (submitting appearance)
Solicitors:
Allen Allen & Hemsley

JUDGMENT:

IN THE LAND AND MATTER No. 40256 of 1997
ENVIRONMENT COURT CORAM: Talbot J
OF NEW SOUTH WALES DECISION DATE: 17 March 1999

DAVID JAMES BALCOME and FLORENCE MARY BALCOMBE
Applicants


v

NAMBUCCA SHIRE COUNCIL
First Respondent
ANTHONY CARL SMITH, ADRIENNE SUSANN SMITH
and
RAYWEB PTY LTD (t/a MIDCOAST TRUCKS AND COMMERCIALS)
Second Respondents

REASONS FOR JUDGMENT ON COSTS


1. Judgment was delivered in this matter on 30 July 1998 including an order that the applicants pay the costs of the successful first respondent.

2. Subsequently on 27 November 1998 the Court exercised its discretion under the slip rule to revoke the order for costs.

3. In the meantime on 13 November 1998 in a reserved judgment the applicants were ordered to pay the second respondents’ costs. The second respondents had entered a submitting appearance except as to costs.

4. Notwithstanding the dismissal of their application for relief, the applicants submit that the so-called usual rule that the successful party is entitled to an order for costs, ought not, in this matter be applied having regard to the facts connected with and leading to the subject litigation.

5. It is submitted that, in the particular circumstances of this matter, an appropriate exercise of the judicial discretion as to the costs of the proceedings is an order that each party bear its own costs. It is said that such an order would reflect the fact that both the applicants and the first respondent were partially successful; each aspect of the proceedings required an equivalent amount of Court time; the first respondent filed no material other than points of defence and that the outcome of the application clarified a problematic provision of the relevant planning instrument.

The facts relied upon

6. The first applicant gave evidence that when notice was received of a proposed rezoning, he made no objection upon the ground that the second respondents had, separately, represented to him that there would be no workshop activities conducted from the land in the event that the scheduled rezoning was effected. This evidence was admitted only as being relevant to the question of costs because whether or not the applicants did or did not object to a proposal to rezone the subject land was not otherwise a relevant consideration. There is no evidence to support even a suggestion or inference that the second respondents made the same representation to the council. Even if the second respondents did make the representation as alleged, it would not lead to the first respondent becoming disentitled to an order for costs in the proceedings which ultimately turned on the construction of a condition of development consent.

7. The applicants also rely upon a letter, submitted to council in support of an application to modify development consent, to the effect that the second respondents were given verbal permission to undertake repairs and that the council had known that such repairs were being carried on over a period of two years. The only evidence that the first respondent may have condoned unauthorised mechanical work is the submission made to it in the letter. The response was that council had considered the proposal to amend conditions of development consent together with the submission and resolved to grant conditional approval. Apart from the lack of probative value of the assertion made by the second respondents in the circumstances, I nevertheless agree with the first respondent’s submission that even if proved, such conduct is not relevant to the question of costs. The proceedings were commenced some three months after the application for modification was approved.

8. The applicants seek to raise some element of public interest in the proper construction of the LEP by reference to journalistic comment and reporting in a local newspaper. That council was in no doubt about how the LEP should be construed was made clear in a letter to the applicants’ solicitors in August 1997. There is nothing in that letter which conflicted in any relevant way with the Court’s findings in its judgment published on 30 July 1998.

9. The applicants rely upon the alleged failure by the council’s solicitor to respond to approaches made by their solicitor seeking alternative means of resolving the dispute. A party to litigation is not obliged to enter into negotiations for settlement at the risk of otherwise suffering a costs order against it except in special circumstances. In Latoudis v Casey (1990) 170 CLR 534, particularly in the judgment of the Chief Justice at 544, the High Court recognised the prospect that there could be particular circumstances where it would not be just and reasonable to order costs or to order payment of all of a party’s costs. For example, where the party brought the proceedings upon himself or herself or could have given an explanation or a version of events and declined to take up the opportunity. No such circumstances exist here.

10. I have dealt with all of the particular facts relied upon by the applicants and can find no reason to support the exercise of the Court’s discretion in any way other than to follow the conventional practice of making an order in favour of the successful party.

11. There is one aspect of the proceedings however which require special consideration.

12. When judgment was delivered on 30 July 1998 the Court made an order that the applicants pay the costs of the first respondent. Subsequently an application was made by the applicants for the Court to make an order to provide that the question of costs between the applicants and the first respondent be reserved. This arose as a consequence of a misunderstanding of submissions put during argument in relation to an objection to evidence when certain evidence by the first applicant was admitted as being relevant only to the question of costs. An order reserving the question of costs between the applicants and the first respondent was made on 27 November 1998. It is appropriate in the circumstances of that order that each party should pay their own costs in respect of that notice of motion. The first respondent did not appear and accordingly did not oppose the making of the order.

Formal orders

13. It is appropriate that the applicants be ordered to pay the costs incurred by the first respondent in respect of the proceedings except in respect of the application made pursuant to Pt 10 r 7 of the Land and Environment Court Rules.

14. The Court makes the following order:-

1. That the applicants pay the costs of the first respondent (except in respect of the exercise of the Court’s powers pursuant to Pt 10 r 7 of the Land and Environment Court Rules) such costs to be in the sum agreed between the parties or as assessed.

I hereby certify that this and the preceding 4 pages are a true and accurate record of the reasons for judgment herein of the Honourable Justice R N Talbot.

Associate