Castle Constructions Pty Limited v Director-General of the Department of Planning & Anor

[2008] NSWLEC 162

Land and Environment Court

of New South Wales

CITATION:

Castle Constructions Pty Limited v Director-General of the Department of Planning & Anor (No 2) [2008] NSWLEC 162

PARTIES:

APPLICANT
Castle Constructions Pty Limited

FIRST RESPONDENT
Director-General of the Department of Planning

SECOND RESPONDENT
North Sydney Council

FILE NUMBER(S):

40949 of 2007

CORAM:

Jagot J

KEY ISSUES:

Costs :- whether unsuccessful applicant should be ordered to pay costs of both respondents - whether the Council was a proper contradictor - reasonableness of the Council in taking active role in the proceedings - applicant ordered to pay the Council's costs.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

28 April 2008

EX TEMPORE JUDGMENT DATE:

28 April 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr V Lahoud, Director of Applicant company
SOLICITORS
N/A

FIRST RESPONDENT
N/A
SOLICITORS
N/A

SECOND RESPONDENT
Mr A M Pickles
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

28 April 2008

40949 of 2007

CASTLE CONSTRUCTIONS PTY LIMITED
Applicant

DIRECTOR-GENERAL OF THE DEPARTMENT OF PLANNING
First Respondent

NORTH SYDNEY COUNCIL
Second Respondent

JUDGMENT

Jagot J:

1 This aspect of the matter concerns the issue of costs consequential upon my decision of 28 November 2007 dismissing the Class 4 application. The applicant had sought declarations and consequential orders relating to the validity of two certificates issued under s 65 of the Environmental Planning and Assessment Act 1979 with respect to the draft North Sydney Local Environmental Plan Amendment 28 North Sydney Centre. The first respondent was the Director General of the Department of Planning. The second respondent was North Sydney Council.

2 With respect to the issue of costs, the applicant has reached an agreement with the first respondent that the applicant pay the first respondent’s costs agreed in the sum of $20,000. The applicant, however, disputes any entitlement of the second respondent to an order for costs on various grounds. The applicant observed that the Council had originally entered a submitting appearance in the proceedings. The applicant accepts that after the applicant amended the Class 4 application on or about 7 November 2007 to deal with a second s 65 certificate, the Council altered its position and determined to take an active role in the proceedings, having in that respect filed and served a further notice of appearance on 8 November 2007. However, the applicant says that in any event there should not be an order for costs in favour of the Council because, in essence, the substance of the argument concerned actions of the first respondent with the consequence that the involvement of the Council was simply unnecessary. The applicant therefore says that the first respondent was the real contradictor in the proceedings and it would be in the public interest for the Court to signal to parties that expensive, unnecessary involvement in proceedings does not assist in the just, quick and cheap resolution of the real issues in those proceedings.

3 The reference to expensive in this aspect of the applicant’s submissions presumably concerns an email from the solicitors for the Council to the solicitors for the applicant, indicating that the Council’s costs would be in the order of some $66,000 when the applicant has reached an agreement with respect to the first respondent’s costs in the sum of $20,000. There is a large discrepancy between the costs agreed between the applicant and the first respondent and the costs claimed by the Council. This, however, is an issue of quantum and does not go to the question of principle in these proceedings.

4 In the proceedings, the inescapable fact is that the applicant sought three orders against the Council, seeking to restrain the Council from taking any step to publicly exhibit the draft amendment, seeking to restrain the Council from considering any submissions received in response to any exhibition of the draft amendment, and seeking an order that the draft amendment be withdrawn altogether from public exhibition. In these circumstances, it is undoubtedly the case that the Council was a necessary and proper party to these proceedings. Moreover, the Council was entitled to take an active role in the proceedings. The Council’s involvement did not involve unnecessary duplication of the submissions made by the first respondent. Their positions were identical, but the Council focussed its attention on the second certificate and the entirety of the hearing was completed in the one day allocated.

5 In these circumstances, I accept the submissions made by the Council that the ordinary compensatory principle of costs should operate with the consequence that there should be a costs order in favour of the Council.

6 I am concerned about two issues. The first is that today a large affidavit was served by the Council annexing material which was unnecessary, as the only document that was required to be tendered was the two-page facsimile of 8 November 2007 annexing the further notice of appearance. Accordingly, those unnecessary costs should not be part of any costs order and I propose to tailor the order to make sure that is excluded.

7 The other issue is the quantum of costs where it is undeniable that the Council’s costs seem to far exceed those of the first respondent and, prima facie at least, far exceed what anybody might expect in relation to a one-day hearing. Therefore, I would like to hear further as to whether or not I should cap the costs order so as to avoid a later dispute.

[Parties address on whether costs should be capped].

The applicant is to pay the second respondent’s costs of the proceedings as agreed or assessed, excluding the costs of the preparation of the affidavit of Mark Jaku sworn 28 April 2008.
****************************