Carriage v Stockland Development Pty Ltd [No 9] - [2004] NSWLEC 752

Land and Environment Court

of New South Wales

CITATION: Carriage v Stockland Development Pty Ltd & Ors [No 9] [2004] NSWLEC 752

PARTIES: APPLICANT
Allen Carriage
FIRST RESPONDENT
Stockland Development Pty Ltd

FILE NUMBER(S): 40863 of 2002

CORAM: Pain J

KEY ISSUES: Costs :- whether payable forthwith

LEGISLATION CITED: Land and Environment Court Act 1979 s 69
Land and Environment Court Rules Pt 16
Supreme Court Rules Pt 52A r 9

CASES CITED: ASIC v Rich [2003] NSWSC 297;
Carriage v Stockland Development Pty Ltd & Ors [No 8] [2004] NSWLEC 727;
Fiduciary Limited v Morningstar Research Pty Limited [2002] NSWSC 432;
Kyabram Property Investments Pty Limited v Murray; Murray v Duddy [2003] NSWSC 286;
Linfox Transport Australia Pty Limited v Ellul & Ors [2003] NSWSC 396 ;
Westfield Management Limited and Ors v Direct Factory Outlets Homebush Pty Limited [2004] NSWLEC 538

DATES OF HEARING: 21/12/2004

EX TEMPORE
JUDGMENT DATE : 12/21/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr T McAvoy instructed by Shaw Reynolds Lawyers
FIRST RESPONDENT
B J Skinner instructed by Baker & McKenzie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

21 December 2004

40863 of 2002 Allen Carriage v Stockland Development Pty Ltd & Ors No 9
EX TEMPORE JUDGMENT

1 Her Honour: I have before me an urgent Notice of Motion brought on this morning by the Applicant’s solicitor in which the order is sought that, in the interests of justice, the Applicant’s order for costs entered by the Court on 20 December 2004 be payable forthwith. The Notice of Motion arises from a judgment I gave in this matter yesterday, Carriage v Stockland Development Pty Ltd & Ors [No 8] [2004] NSWLEC 727 (“Carriage [No 8]”) in which I made orders to the effect that the First Respondent is to pay the costs of the Applicant in relation to grounds 1 and 2 of these proceedings and also the costs of the motion in that matter. I also made a finding that I should not make any order as to costs on ground 4.

2 The matter is before me today on the basis that there is an urgent need to clarify the orders made yesterday and that I make the order sought forthwith. The application relies in part on Pt 52A r 9 of the Supreme Court Rules. While these are adopted by the Land and Environment Court Rules in Pt 16 I note that the relevant rule suggests that in fact the adoption may be only partial, but in the interests of time I am not going to resolve now whether or not Pt 52A of the Supreme Court Rules is completely adopted for the purpose of these proceedings. I will have regard to Pt 52A r 9(3)(a)(iii) of the Supreme Court Rule which refers to “justice otherwise demands” that I make the order sought as that is the basis on which this has been pursued by the Applicant. I…

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: [2004] NSWLEC 752
Decision Date: 12/21/2004

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard an urgent Notice of Motion brought by Allen Carriage against Stockland Development Pty Ltd, seeking an order that the costs previously awarded to Carriage be payable forthwith. The costs in question were awarded by the Court on 20 December 2004 in relation to grounds 1 and 2 of the proceedings, with no order made on ground 4. The urgency of the motion was based on the need to clarify the orders made in the earlier judgment.

The central legal issue before the Court was whether it should exercise its discretion to order that the costs be payable immediately, despite the general rule that costs are not payable forthwith unless otherwise specified by statute or court rule. The Court considered the relevant statutory provisions under the Land and Environment Court Act 1979 and the applicable rules, including Part 52A of the Supreme Court Rules, partially adopted by the Land and Environment Court Rules. The Court also reviewed several precedent cases to understand the circumstances under which such an order may be appropriate.

The Court examined the factors that typically justify an order for costs to be payable forthwith, including the completion of a discrete aspect of the proceedings, unreasonable conduct by the party against whom costs are awarded, and the potential for extended proceedings. However, the Court found that none of these factors were present in the current case. While the proceedings were lengthy, there was no evidence of unreasonable conduct by the First Respondent, nor was there a discrete aspect of the proceedings that had been concluded. The Court also noted that the financial strain on the parties due to the length of the proceedings did not justify the exceptional measure of ordering immediate payment of costs.

The Court refused the application for the costs to be payable forthwith, noting that the matter before the Court was the conduct of the litigation itself, not the unrelated bankruptcy proceedings. The Court concluded that there was no justification to vary the costs order and dismissed the Notice of Motion, ordering that Carriage pay the First Respondent's costs associated with the motion.

Orders