Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (No 2)
[2009] NSWCA 310
•1 October 2009
New South Wales
Court of Appeal
CITATION: Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (No 2) [2009] NSWCA 310 HEARING DATE(S): On the papers
JUDGMENT DATE:
1 October 2009JUDGMENT OF: Tobias JA at 1; Young JA at 31; Bergin CJ in Eq at 32 DECISION: (a) The appeal of the appellant against so much of the order of Pain J dated 28 July 2008 dismissing its application for relief against the first respondent be allowed.
(b) Set aside Order 1 made by Pain J on 28 July 2008 insofar as it relates to the Application with respect to the first respondent.
(c) Set aside Order 2 made by Pain J on 28 July 2008.
(d) Declare that the two cabins installed by the first respondent on Lots 40 and 47 on land known as 2868 River Road, Wisemans Ferry, comprising Folio Identifier 1102/1061450 and Folio Identifier 1201/1076039 were installed in breach of Conditions 1, 6, 30 and 41 of Development Consent No. 2430/2003/HE issued by the appellant to the first respondent and dated 1 August 2003.
(e) Remit the proceedings as between the Council and the first respondent to the Land and Environment Court to determine the relief, if any, to which the appellant is entitled as a consequence of the breaches referred to in paragraph (d) above.
(f) Remit the costs of the hearing at first instance as between the Council and the first respondent to the Land and Environment Court to be determined by the Judge conducting the remitted hearing referred to in paragraph (e) above.
(g) The first respondent to pay one half of the appellant’s costs of the appeal.
(h) The appellant to pay the second respondent’s costs of the appeal.CATCHWORDS: PROCEDURE – Costs – General rule – Costs follow the event – Remittal of question of costs at first instance to Land and Environment Court – Costs of Appeal – Appellant’s proceedings and appeal against second respondent based on a false assumption that a construction certificate was required to be issued – Departing from the general rule – Where significant amount of costs thrown away due to successful appellant’s conduct of litigation through advancing legally false issue – Evaluation of proportion of costs to be awarded to successful appellant – Entitlement of falsely joined party to costs LEGISLATION CITED: Civil Procedure Act 2005
Land and Environment Court Act 1979
Environmental Planning & Assessment Act 1979CATEGORY: Consequential orders CASES CITED: Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504
Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306PARTIES: Baulkham Hills Shire Council
Ko-veda Holiday Park Estate LtdFILE NUMBER(S): CA 40229/08 COUNSEL: A: A Galasso SC / M C Fraser
1R: M Craig QC / T Howard
2R: A M PicklesSOLICITORS: A: Baulkham Hills Shire Council, Castle Hill
1R: Hones La Hood, North Sydney
2R: Riley Gray-Spencer, SydneyLOWER COURT JURISDICTION: Land & Environment Court LOWER COURT FILE NUMBER(S): LEC 40625/07 LOWER COURT JUDICIAL OFFICER: Pain J
CA 40229/08
LEC 40625/071 October 2009TOBIAS JA
YOUNG JA
BERGIN CJ in EQ
1 TOBIAS JA: Judgment on the hearing of the substantive appeal in this matter was delivered on 29 June 2009 (the appeal judgment: Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160). Adopting for convenience the terminology in that judgment, the Court found (at [116]) that the two cabins, which had been installed by the first respondent upon Lots 40 and 47 of Lot D, had been installed in breach of Conditions 1, 6, 30 and 41 of the cabins consent. The Council had, in its Further Amended Points of Claim (FAPOC) alleged breaches of Conditions 1, 6, 23, 30 and 41 of that Consent. Accordingly, before this Court it was generally successful in its claim, failing only to establish a breach of Condition 23.
2 The primary judge found that there was no breach of any of the conditions referred to. However, in so doing she had proceeded, due to no fault on her part, upon a false legal basis which the Court identified and discussed at [51]-[61] of the appeal judgment and which is summarised at [115(a)] of that judgment.
3 In these circumstances an issue arose as to the question of what, if any, orders for costs should be made with respect to the proceedings to date before the primary judge and on the appeal. The Court discussed that question at [123]-[128] of the appeal judgment. The tentative view was expressed (at [126]) that each party should pay its or his own costs of the proceedings to date at first instance, whilst the first respondent should pay the costs of the Council on the appeal. No tentative view was expressed with respect to the payment of the costs of the second respondent.
4 The only order the Court made when the appeal judgment was delivered was to direct the parties to provide written submissions on the question of costs of the proceedings to date at first instance and of the appeal. Those submissions have now been filed and considered.
The orders sought by the parties
5 The costs orders sought by the parties in their respective submissions are as follows:
The Council
(a) As between the Council and the first respondent, the first respondent to pay the Council’s costs both before the primary judge and on the appeal.
(b) As between the Council and the second respondent, there be no order as to costs either at first instance or on the appeal.
The first respondent
(a) As to the costs of the proceedings to date before the primary judge, these should be remitted to the Land and Environment Court for determination at the conclusion of the proceedings given that this Court proposes to remit the proceedings to that court for determination of whether, as a matter of discretion, the Council should obtain the relief that it seeks, namely, that the two cabins be removed.
(b) As to the costs of the appeal, the Council and the first respondent to bear its own costs of the appeal or, alternatively, the first respondent be ordered to pay only part of the Council’s costs of the appeal being for one day’s hearing, thus excluding the costs of preparation for the appeal and of the second day’s hearing.
(a) The Council to pay the second respondent’s costs both at first instance and on the appeal.The second respondent
6 It will be seen from the foregoing that, contrary to the tentative view expressed by the Court at [126] of the appeal judgment, the Council submits that the first respondent should pay its costs of the proceedings at first instance, whereas the first respondent submits that those costs should be remitted for determination by the Land and Environment Court on the remitter. With respect to the costs of the appeal, the Council adopts the tentative view referred to at [127] of the appeal judgment, that the first respondent should pay its costs of the appeal, whereas the first respondent submits that each of it and the Council should bear their own costs of the appeal subject to the alternative to which I have referred.
7 As to the costs of the second respondent, the Council submits that there should be no order as to his costs either at first instance or on the appeal, whereas the second respondent submits that the Council should pay those costs.
The competing submissions of the parties in support of their respective positions
8 The Council’s submissions may be summarised as follows
(a) The Council at all times alleged breaches of Conditions 1, 6, 30 and 41 of the cabins consent. It was successful in establishing those breaches before this Court generally in accordance with allegations and particulars summarised by the primary judge at [5] of her judgment and repeated at [7] of the appeal judgment. As the breaches found by this Court are consistent with the Council’s case before the primary judge, there is no reason why the first respondent should not pay the Council’s costs of both the proceedings at first instance and on the appeal.
(b) Although the proceedings before the primary judge proceeded on a false legal basis insofar as the Council in its FAPOC had pleaded (at [41]-[54]) that the Certificate issued by the second respondent was invalid (a claim which the primary judge rejected), it had nevertheless alleged at [5]-[40] of the FAPOC and established breaches of Conditions 1, 6, 30 and 41 of the cabins consent which was sufficient to entitle it to the relief sought (subject only to the question of discretion with which her Honour did not deal). The pleading of the invalidity of the Certificate issued by the second respondent was, in effect, merely defensive in anticipation of the first respondent’s reliance upon the validity of the Certificate in answer to the prima facie breaches of the conditions referred to.
(c) Thus, the first respondent’s defence was “ driven ” by its reliance and insistence upon the validity of the Certificate in that it successfully submitted that the issuing by the second respondent of a valid Certificate “ trumped ” the breaches of the cabins consent alleged by the Council.
(e) Accordingly the failure of the second respondent to press before the primary judge his plea that a construction certificate under Part 4A of the EP&A Act was not required, constituted “ disentitling conduct ” on his part to any order for costs against the Council.(d) With respect to the second respondent, the Council relies on the observations of the Court at [58] and [125] of the appeal judgment, noting that the second respondent not only elected not to press paragraph 19 of his Amended Points of Defence before the primary judge, but also successfully mounted a positive case in support of the validity of the Certificate which he had issued.
9 The first respondent’s submissions may be summarised as follows:
(a) No order for costs should be made by this Court with respect to the costs of the proceedings to date in the Land and Environment Court as between the first respondent and the Council. On the contrary, the issue of costs should be remitted to be determined upon resolution of the outstanding issue as to whether the Council is entitled to any relief in respect of the breaches of the conditions of the cabins consent which have been established. It is quite possible that, as a matter of discretion, no such relief will be granted. As a consequence the Council’s proceedings will be dismissed. If this occurs, then the first respondent should be entitled to its general costs of the proceeding in the Land and Environment Court in accordance with the principle that costs follow the event.
(b) Furthermore, depending upon whether or not as a matter of discretion the Land and Environment Court grants any relief to the Council, other considerations with respect to the question of costs may arise such as offers made in an attempt to resolve the proceedings and correspondence of a Calderbank nature. Those matters have not, of course, been ventilated either before the court below or this Court.
(c) As to the costs of the appeal, each of the Council and the first respondent should bear its own costs given that until the matter was raised on the first day of the hearing of the appeal, the parties had proceeded and prepared their appeal submissions upon the basis that the issues to be determined on the appeal related to the correctness of the primary judge’s findings and which included her determination of the issue of the validity of the Certificate.
(d) Furthermore, three primary circumstances caused the proceedings below to proceed on a false basis with the consequence that part of the appeal was occupied by argument which was ultimately determined to be irrelevant. First, the Council had issued a development consent containing conditions which purported to require a construction certificate to be obtained, there being numerous obligations in those conditions which assumed that such a certificate was required under Part 4A of the EP&A Act. Second, as a consequence of the foregoing the responsibility for the error lies squarely at the feet of the Council both with respect to the requirement contained in the cabin conditions for a construction certificate on the one hand and the allegation contained in its FAPOC that the Certificate issued by the second respondent in purported compliance with those conditions, was invalid on the other. Third, the Council positively asserted in the court below as well as in this Court, that the provisions of Part 4A of the EP&A Act were engaged or “ incorporated ” into the cabins consent by operation of that consent, a proposition which this Court rejected as being without merit at [114] of the appeal judgment.
(e) It would have been inappropriate for the first respondent to have challenged the inclusion by the Council in the cabins consent of a requirement for a construction certificate upon the basis that no such certificate was required under Part 4A of the EP&A Act. Any such submission may have imperilled the validity of that consent which was not in the first respondent’s interests. It was therefore entitled to assume the validity of that consent and its conditions. The Council, having pressed its claim against the first respondent on the premise that Part 4A applied, was therefore the architect of the error in the manner in which the proceedings were conducted before the primary judge.
(f) It follows that given the manner in which the Council pleaded its case, the first respondent had no choice but to, and was entitled to, rely upon the validity of the Certificate issued by the second respondent by way of defence to any finding that it had breached the relevant conditions.
(h) Finally, although the Council was successful in this Court in establishing breaches of the cabins consent on the part of the first respondent, it was not wholly successful in that, for instance, it failed to persuade this Court that there should be an exclusionary remitter order (see [112] to [122] of the appeal judgment).(g) Furthermore, if it be ultimately found that the Council is not entitled to relief against the first respondent notwithstanding the breaches of the cabin conditions found by this Court, it would be unjust to order the first respondent to pay the Council’s costs of the appeal. In these circumstances there should be no order as to the costs of the appeal as between the Council and the first respondent. Alternatively, any such order should be limited to so much of the hearing as was devoted to the issue of breach or no breach of the relevant conditions. Such an order would leave the costs of the preparation of the appeal and one day of the hearing, which related to what was ultimately found to be a false issue, to be borne by each of the parties themselves.
10 The Council’s reply to the first respondent’s submissions may be summarised as follows:
(a) The first respondent’s submissions seek to divert attention from the fact that it relied on the Certificate in order to overcome the breaches of the cabins consent upon which the Council relied. Notwithstanding that the first respondent must have been aware of paragraph 19 of the second respondent’s Amended Points of Defence, not only did it not accept the legal assertion contained in that paragraph, but it actively asserted that the Certificate had sufficient legal force to authorise what would otherwise have been breaches of the cabins consent. It was successful in so doing before the primary judge.
(b) Because of the manner in which the first respondent conducted its defence to the Council’s claim, considerable time was spent at the hearing at first instance, and on the appeal, on the proper construction of the relevant conditions of the cabins consent. Nevertheless, it was in the first respondent’s perceived interest to ignore paragraph 19 of the second respondent’s Amended Points of Defence and to rely upon the Certificate and its validity as a defence to any breaches of the cabin conditions that the Council established. There is no reason in these circumstances why the first respondent should not pay the Council’s costs at first instance and on the appeal.
(d) All parties were complicit in promoting the false legal basis that underpinned the primary judge’s judgment. Relevantly, the issues and the strategy of the first respondent were so tied to the legal status of the Certificate that any apportionment of costs would be unfair to the Council which has been successful against the first respondent on the basic and primary issue of breach.(c) Although this Court proposes to remit the question of relief to the Land and Environment Court, nevertheless the hearing at first instance was bifurcated insofar as the issue of “ liability ” was determined separately from any question of discretion going to the issue of relief. Although her Honour found that there were breaches of Conditions 5 and 46 by the first respondent, she stood over the question of relief with respect to those breaches, especially given that she had rejected what were referred to by the Council as the substantial breaches of Conditions 1, 2, 6, 23, 26, 30 and 41 of the cabins consent. In these circumstances there is no reason why the first respondent should not pay the Council’s costs of the proceedings at first instance to date. The question of breach or no breach was a major issue at first instance and on the appeal and the first respondent has ultimately failed on that issue.
11 The second respondent’s submissions may be summarised as follows:
(a) Before the primary judge, the second respondent’s submissions with respect to the validity of the Certificate issued by him were upheld. On the appeal, because it was legally irrelevant, her Honour’s finding in that respect has not been demonstrated to have been in error. Given the legal irrelevancy before the primary judge of the second respondent’s issue of the Certificate to the question of breach by the first respondent of the cabin conditions, there is no reason why the second respondent should not be entitled to have its costs paid by the Council both at first instance and on the appeal.
(b) Of significance is the fact that it was the Council who joined the second respondent to the proceedings and in its FAPOC claimed that the Certificate issued by the second respondent was invalid pursuant to the requirements of the cabin conditions that the Council had imposed. In issuing the Certificate, the second respondent had done no more than what was required by those conditions. Given the allegation of invalidity, the second respondent had no alternative but to defend his position.
(c) However, it was unnecessary for the Council to have joined the second respondent to the proceedings or to have raised the question of the invalidity of the Certificate issued by him. It would have been sufficient to have simply pleaded breaches of the cabin conditions by the first respondent. The latter may then have set up the Certificate issued by the second respondent in defence to the Council proving successful in establishing those breaches – but that is not how the matter proceeded. The first and second respondents had no choice but to dispute the allegations of the Council in its FAPOC that the Certificate was invalid.
(d) Although the second respondent did not serve its Amended Points of Defence containing paragraph 19 until six days before the commencement of the hearing, nevertheless the Council was on notice of the point raised thereby and it could have sought to discontinue its claim against the second respondent, which it did not do. Rather, it maintained its argument that the Certificate was invalid.
(e) In any event, the second respondent was successful below in defending the validity of the Certificate, even if the Council’s claim was misconceived. The fact is that the Council maintained its position. Not only was a construction certificate called for by the consent conditions, but also the Certificate issued by the second respondent was found to be valid.
(f) Thus the Council was the moving party in the proceedings and had control over their direction. In any event the second respondent raised the issue in opening submissions on the first day of the hearing. The Council’s response to the matter being raised was it would “ attempt to cure that ”. But the Council did not address the issue further until closing submissions. It was then submitted on behalf of the Council that even if a construction certificate was not legally required, because there was “ no building work ” as defined to certify, this supported the Council’s submission that the Certificate issued by the second respondent was invalid.
(g) The Council argued below that s 80A of the EP&A Act authorised it to insist upon a construction certificate even though Part 4A was not engaged. Hence for the most part the Council’s case remained substantially hinged upon breaches by the first respondent of the consent conditions which contemplated the issue of a construction certificate which, it argued (wrongly) was authorised by s 80A. This left the second respondent in the position where it was necessary for him (as well as the first respondent) to continue to defend the validity of the Certificate as issued against the allegation of breaches of conditions of the cabins consent.
(h) I interpolate that it may be noted that it would appear that the only explanation for the Council in its FAPOC pleading the issuing of the Certificate by the second respondent and then alleging its invalidity was because it accepted that the issuing of a valid Certificate would trump some or all of the alleged breaches of the relevant conditions of the cabins consent by virtue of the effect of s 80(12) of the EP&A Act. This was certainly the view of the primary judge: see at [150] of her Honour’s judgment.
(k) Nevertheless, the Council sought to argue that the relevant provisions of Part 4A together with the relevant regulations were, so to speak, incorporated by reference into the cabins consent through the medium of Condition 8 so as to require the issue of the Certificate. This argument was considered to be without merit and was rejected by the Court at [114] of the appeal judgment.(i) As to the costs of the appeal, the second respondent submitted that as this Court determined that the second respondent was wrongly joined in the proceedings, the Council’s appeal against the primary judge’s findings with respect to the validity of the Certificate issued by the second respondent failed, albeit for different reasons than those determined by the primary judge.
12 The Council’s reply to the second respondent’s submissions can be shortly summarised:
(a) Notwithstanding having raised the issue as to the necessity for a construction certificate, the second respondent essentially abandoned reliance upon the point until it was enlivened in the debate before this Court as to whether such a certificate was required at all. It would have been open to the second respondent to strike out so much of the FACOP as asserted the invalidity of the Certificate, but this was not a course that was taken. Accordingly, the second respondent, as well as the other parties, contributed to the course of the litigation by failing to pursue paragraph 19 of his Amended Defence.
(b) Having in effect elected not to press that part of his defence, the second respondent then elected to defend the validity of a certificate which he now says was never required and thus engaged in what was referred to as “ disentitling conduct ”.
The disposition of the costs at first instance(c) In these circumstances, the tentative view expressed at [126] of the appeal judgment should be confirmed, namely, that each party should pay its or his own costs of the proceedings in the Land and Environment Court to date.
13 The principles currently applicable in a case such as the present to the making of orders on appeal as to the costs of the proceedings at first instance were recently discussed by Basten JA, with whom on this subject Spigelman CJ and Campbell JA agreed, in McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 at 549 [214] to [217]. However, the provisions of the Civil Procedure Act 2005 and UCPR r 42.1 to which his Honour there referred, may not apply to the present case insofar as the proceedings appear to have been commenced by the Council prior to the repeal of s 69 of the Land and Environment Court Act 1979 (the Court Act) with effect from 28 January 2008.
14 Nevertheless, the general discretion under s 69 of the Court Act, if applicable to the present case, to determine by whom and to what extent costs are to be paid does not detract from the principle which has been applied in the exercise of that discretion to the effect that costs generally follow the event subject to other countervailing circumstances such as disentitling conduct.
15 Notwithstanding the submissions of the Council that there was such conduct on the part of the second respondent and, to a lesser extent, of the first respondent, which I would reject, subject to one matter relating to the Council’s submission with respect to the question of costs between it and the first respondent, in my opinion the first respondent should pay the Council’s costs of the proceedings at first instance to date and the Council should pay the costs of the second respondent of those proceedings.
16 As to the second respondent’s costs, it was the Council who originally joined the second respondent to the proceedings and who sought to make a positive case that the Certificate issued by him was invalid. Further, it was the Council that imposed the requirement for a construction certificate in its conditions of consent in circumstances where it had no power to do so. However, having done so, it was in my view reasonable for the first respondent to have obtained the Certificate from the second respondent and for the second respondent to have defended the validity of that Certificate in the light of the challenge thereto which the Council mounted in its FAPOC. That challenge failed before the primary judge. Because of the change in direction of the appeal in this Court due to no fault of the second respondent, her Honour’s finding of validity stands.
17 The issue of the validity of the Certificate should never have been raised by the Council but, having done so, the second respondent was not only entitled but also required to deal with it. The challenge mounted by the Council against its validity, if it had been successful, would have reflected adversely upon the reputation and professionalism of the second respondent. It was not for him to challenge the power of the Council to require the provision of such a certificate in the cabin conditions. He had to deal with the proceedings against him at face value. He did so, and did so successfully.
18 The fact that the Council has been deprived on appeal of challenging the primary judge’s decision as to the validity of the Certificate is not, in my view, of any weight in circumstances where such a certificate was not required in the first place, a matter which the Council itself should have recognised and, when it was brought to its attention by paragraph 19 of the second respondent’s Amended Defence, acted upon. Not only did the Council fail to acknowledge the correct legal position as pleaded, it continued to assert both before the primary judge and this Court that it was entitled to require a construction certificate and that Part 4A of the EP&A Act and the regulations (with which it alleged the Certificate had failed to comply) were “incorporated” by reference into the cabins consent: see [114] of the appeal judgment.
19 As the Council is not entitled to any relief against the second respondent, the remittal of the proceedings by this Court does not bear upon the issue of the costs of the proceedings at first instance as between the Council and the second respondent. In these circumstances, in my opinion the Council should be ordered to pay the second respondent’s costs of the proceedings at first instance. This was the order made by the primary judge on 28 July 2008 (Order 3) and it should not be disturbed.
20 As I have indicated, but for one matter, in my opinion the first respondent should pay the Council’s costs of the proceedings to date at first instance given that the Council has been successful in establishing a breach of Conditions 1, 6, 30 and 41 of the cabins consent. Although, generally speaking, there would be force in the first respondent’s submission that ultimately the Council may fail to obtain any relief against it on the remitter in the event that the remitter judge exercises his or her discretion in the first respondent’s favour, nevertheless the proceedings at first instance to date were specifically confined to the issue of breach or no breach which was dealt with as a separate matter, as the primary judge acknowledged. In these circumstances, as the Council has succeeded against the first respondent, costs would normally follow the event.
21 However as noted at [9(b)] above, in paragraph 4 of its written submissions on costs dated 3 August 2009, the first respondent stated:
- “Additionally, a proper exercise of the costs discretion in the proceedings in the Court below might depend on other matters, such a consideration of offers made in an attempt to resolve the proceedings and correspondence of the character identified in Calderbank v Calderbank , evidence of which is not before this Court, nor, currently, before the Land and Environment Court.”
22 The Council did not respond to this paragraph in its written submissions in reply dated 10 August 2009, so that I would assume that there may have been offers of settlement which could bear upon the proper disposition of the costs of the proceedings at first instance to date. In these circumstances, I would, albeit with some reluctance, accept the first respondent’s submission that the question of the costs of the proceedings to date between the Council and the first respondent should be remitted for determination by the Land and Environment Court.
23 However, in ultimately exercising that Court’s discretion with respect to the costs at first instance, it would be appropriate for the judge hearing the remitter to take into account the factors to which I have referred above which, had it not been for paragraph 4 of the first respondent’s written submissions to which I have referred at [21] above, would have led to me proposing an order that the first respondent pay the Council’s costs at first instance to date. But having remitted the issue of costs, it will ultimately be a matter for the judge hearing the remitter to determine the weight which should be attached in all the circumstances to the factors to which I have referred.
The disposition of the costs of the appeal
24 The tentative view of the Court as expressed at [127] of the appeal judgment was that the first respondent should pay the Council’s costs of the appeal given that that appeal was to be allowed. However, there is no doubt that a significant amount of costs have been thrown away as a consequence of the false issue with respect to the validity of the Certificate which was initiated and advanced by the Council at first instance and, to a more limited extent, before this Court. In this latter respect I refer again to the point raised by the Council and disposed of at [114] of the appeal judgment. As the Council was the appellant and was seeking to reverse the primary judge’s determination which was based on the legally false assumption that a construction certificate was required under Part 4A of the EP&A Act, it follows in my view that, to a large degree, the costs so thrown away were caused by the Council’s conduct of the litigation.
25 However, the foregoing factor needs to be balanced against the fact that the Council has succeeded before this Court in establishing a breach of Conditions 1, 6, 30 and 41 of the cabins consent.
26 Although costs are generally awarded to a successful party without differentiating between the issues on which that party was successful and those on which it failed, it may be appropriate to deprive a successful party of a portion of their costs if the matters upon which that party was unsuccessful took up a significant part of the trial or appeal, whether by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]; approved recently in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]. Where there is a mixed outcome in proceedings, the extent to which the ordinary rule that costs follow the event should be departed from and an apportionment of costs ordered is discretionary and depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34]; also cited with approval in Bostik Australia Pty Ltd v Liddiard.
27 In all the circumstances, in my view, justice will be satisfied by an order that the first respondent pay one half of the Council’s costs of the appeal.
28 With respect to the costs of the second respondent of the appeal, in my view those costs should be paid for by the Council for the reasons advanced by the second respondent and which I would respectfully adopt.
Conclusion
29 As the only order made on 29 June 2009 was to direct the parties to provide written submissions on the question of costs, it is now appropriate to make orders disposing of the appeal generally.
30 I would therefore propose the following declarations and orders:
(a) The appeal of the appellant against so much of the order of Pain J dated 28 July 2008 dismissing its application for relief against the first respondent be allowed.
(b) Set aside Order 1 made by Pain J on 28 July 2008 insofar as it relates to the Application with respect to the first respondent.
(c) Set aside Order 2 made by Pain J on 28 July 2008.
(d) Declare that the two cabins installed by the first respondent on Lots 40 and 47 on land known as 2868 River Road, Wisemans Ferry, comprising Folio Identifier 1102/1061450 and Folio Identifier 1201/1076039 were installed in breach of Conditions 1, 6, 30 and 41 of Development Consent No. 2430/2003/HE issued by the appellant to the first respondent and dated 1 August 2003.
(e) Remit the proceedings as between the Council and the first respondent to the Land and Environment Court to determine the relief, if any, to which the appellant is entitled as a consequence of the breaches referred to in paragraph (d) above.
(f) Remit the costs of the hearing at first instance as between the Council and the first respondent to the Land and Environment Court to be determined by the Judge conducting the remitted hearing referred to in paragraph (e) above.
(h) The appellant to pay the second respondent’s costs of the appeal.(g) The first respondent to pay one half of the appellant’s costs of the appeal.
31 Young JA: I agree with Tobias JA.
: I agree with Tobias JA.
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