Baron Corporation Pty Ltd v Wingecarribee Shire Council (No 2)

[2018] NSWLEC 137

Land and Environment Court

New South Wales

Medium Neutral Citation:	Baron Corporation Pty Ltd v Wingecarribee Shire Council (No 2) [2018] NSWLEC 137
Hearing dates:	26 July 2018, 3 August 2018, 21 August 2018
Date of orders:	06 September 2018
Decision date:	06 September 2018
Jurisdiction:	Class 1
Before:	Pain J
Decision:	The Respondent Council is to pay the Appellant’s costs of the Council’s notice of motion filed 31 July 2018
Catchwords:	COSTS – notice of motion filed by council seeking order that s 56A appeal lacks utility dismissed – costs should follow the event – council should pay the appellant’s costs of the notice of motion
Legislation Cited:	Land and Environment Court Act 1979 s 56A
Cases Cited:	Baron Corporation Pty Ltd v Wingecarribee Shire Council [2018] NSWLEC 132
Category:	Costs
Parties:	Baron Corporation Pty Limited (Appellant) Wingecarribee Shire Council (Respondent)
Representation:	COUNSEL: P Tomasetti SC (Appellant) C Leggat SC (Respondent)   SOLICITORS: Mills Oakley (Appellant) Shaw Reynolds (Respondent)
File Number(s):	2018/183498

Judgment

Costs of Council’s notice of motion filed 31 July 2018

1. In Baron Corporation Pty Ltd v Wingecarribee Shire Council [2018] NSWLEC 132 (Baron No 1) I considered an appeal pursuant to s 56A of the Land and Environment Court Act 1979 filed by Baron Corporation Pty Ltd the Appellant. I dismissed the s 56A appeal and ordered that the Appellant pay Wingecarribee Shire Council’s (the Council) costs in [183]. Before doing so I considered a notice of motion filed by the Council on 31 July 2018 seeking an order that the Appellant’s s 56A appeal be dismissed on the basis that it lacked utility and an order seeking its costs of the notice of motion. I set out the terms of the notice of motion and the parties’ arguments at [10]-[14]. At [14] I dismissed the notice of motion and reserved costs. It is necessary to give a brief judgment concerning the costs of the Council’s notice of motion.

2. The Council first raised the issues the subject of the notice of motion during the first substantive day of hearing of the s 56A appeal on 26 July 2018. The Council made an admission to the Court in the terms recorded in Baron No 1 at [12]. The Council was invited to file a notice of motion to crystallise its claim of lack of utility and it did so on 31 July 2018 supported by an affidavit of Ms Cunningham affirmed 31 July 2018. The matter was argued in part on 26 July 2018 prior to the Council filing the notice of motion, on 3 August 2018 during the adjourned hearing and in a short hearing on 21 August 2018.

3. The Appellant submitted that the notice of motion should be dismissed with costs awarded in its favour.

4. The usual rule in s 56A appeal proceedings is that costs follow the event and that can usefully apply to procedural matters also where justified. The notice of motion took up reasonably substantial hearing time and required the preparation of last minute submissions by the Appellant as the matters raised were without notice to it. I note for completeness that there was also debate between the parties about whether a subdivision works certificate had been issued by the Council to the Appellant and the Council filed with leave what turned out to be heavily disputed evidence in this regard after the hearing was completed. The parties’ arguments on that matter took up a short time in a further hearing on 21 August 2018. As I did not ultimately need to resolve that issue I did not read that evidence. That argument was considered as part of the Council’s notice of motion and should form part of this costs order.

5. It is appropriate to exercise my discretion to award costs of the notice of motion in favour of the Appellant as the successful party on the notice of motion. Its costs of the notice of motion should be paid by the Council.

Orders

6. The Court makes the following order:

1. The Respondent Council is to pay the Appellant’s costs of the Council’s notice of motion filed 31 July 2018.

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