Carriage v Stockland (Constructors) Pty Ltd [No 4] - [2003] NSWLEC 129

Reported Decision: 125 LGERA 414

Land and Environment Court

of New South Wales

CITATION: Carriage v Stockland (Constructors) Pty Ltd and Ors [No 4] [2003] NSWLEC 129

PARTIES:
APPLICANT
Allan Carriage
RESPONDENTS
Stockland (Constructors) Pty Ltd and Ors

FILE NUMBER(S): 40863 of 2002

CORAM: Pain J

KEY ISSUES: Costs :- Class 4 proceedings - application for costs relating to unsuccessful application for interlocutory injunction - whether costs should be awarded at interlocutory stage - whether costs should be determined after the final determination of the matter

LEGISLATION CITED: Land and Environment Court Act 1979 s 69

CASES CITED: Carriage v Stockland (Constructors) Pty Ltd and Another [2002] NSWLEC 117;
Carriage v Stockland (Constructors) Pty Limited and Another (No 2) [2002] NSWLEC 121;
Carriage v Stockland (Constructors) Pty Ltd and Another (Costs) [2002] NSWLEC 218;
Carriage v Stockland (Constructors) Pty Ltd and Ors [2002] NSWLEC 216;
Carriage v Stockland (Constructors) Pty Ltd and Ors (No 2) [2002] NSWLEC 217; (2002) 123 LGERA 214;
Carriage v Stockland (Constructors) Pty Ltd & Ors [No 3] [2003] NSWLEC 86;
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397;
Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy v The Director-General of the National Parks and Wildlife Service and Another (No. 2) [2002] NSWLEC 127;
Oshlack v Richmond River Council (1998) 193 CLR 72;
Stockland (Constructors) Pty Ltd v Allan Richard Carriage (2002) 123 LGERA 289;
Wadi Wadi Coomaditchi Aboriginal Corporation v Stockland (Constructors) Pty Ltd [2002] NSWLEC 105

DATES OF HEARING: 27/02/2003, 04/03/2003

DATE OF JUDGMENT:
05/28/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Oshlack (agent)
SOLICITORS
N/A
FIRST RESPONDENT
Mr S Brockwell (barrister)
SOLICITORS
Baker & McKenzie
SECOND RESPONDENT
Ms A Pearman (barrister) (27/02/2003)
NA - 04/03/2003
SOLICITORS
National Parks and Wildlife Services
THIRD RESPONDENT
submitting appearance
FOURTH RESPONDENT
NA - 27/02/2003
Mr M Fraser (barrister) (04/03/2003)
SOLICITORS
Peedoms

JUDGMENT:

40863 of 2002
Pain J
28 May 2003

ALLAN CARRIAGE

STOCKLAND (CONSTRUCTORS) PTY LTD

DIRECTOR-GENERAL OF THE NATIONAL PARKS AND WILDLIFE

SERVICE OF NEW SOUTH WALES

Second Respondent

THE MINISTER FOR THE DEPARTMENT OF LAND AND WATER CONSERVATION

Third Respondent

WOLLONGONG CITY COUNCIL

Fourth Respondent

Judgment

Introduction

1. This judgment concerns a Notice of Motion filed by the First Respondent on 24 February 2003 seeking costs in relation to an application brought by the Applicant for an interlocutory injunction. That interlocutory injunction was refused. The First Respondent’s Notice of Motion seeks the following:

1. An order that the Applicant pay the First Respondent’s costs of preparation, and of the hearing, in relation to the first order sought by the Applicant in its Notice of Motion dated 3 February 2003.

2. An order granting leave to the First Respondent to have the costs sought in the above order assessed immediately.

2. The First Respondent also sought its costs on an indemnity basis.

Background

3. In order to understand the arguments put by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWLEC 129
Decision Date: 05/28/2003

CaseChat Overview and Summary

The case before the Land and Environment Court of New South Wales, Carriage v Stockland (Constructors) Pty Ltd [No 4], involves a Notice of Motion filed by the First Respondent seeking costs related to an unsuccessful application for an interlocutory injunction by the Applicant. The First Respondent argues that costs should be awarded at the interlocutory stage due to the unsuccessful nature of the application and seeks its costs on an indemnity basis. The Applicant contends that costs should be reserved until the final hearing. The central legal issues revolve around whether costs should be awarded at the interlocutory stage and if so, whether they should be assessed immediately.

The court considered the submissions from both parties, noting that interlocutory costs are typically reserved until the final outcome. However, the First Respondent argued that despite the interlocutory nature of the matter, special circumstances warranted an immediate costs order. The Applicant, on the other hand, emphasised the public interest nature of the litigation and the lack of a final determination of the issues, advocating for the usual practice of reserving costs.

The court held that while the usual practice is to reserve costs until the final outcome, the circumstances of this case necessitated a different approach. Despite the unsuccessful interlocutory application, the court found that the matters argued by the Applicant had not been fully litigated, and the final outcome remained undetermined. Consequently, the court refused the First Respondent’s application for costs at this stage, instead postponing the decision until the final outcome of the costs in these proceedings is determined. The court also noted that it was unnecessary to consider the application for indemnity costs or the immediate assessment of costs.

Orders