Conomos v Mosman Municipal Council (3)

[2005] NSWLEC 274

Land and Environment Court

of New South Wales

CITATION:

Conomos v Mosman Municipal Council (3) [2005] NSWLEC 274

PARTIES:

APPLICANT
George Conomos

RESPONDENT
Mosman Municipal Council

FILE NUMBER(S):

10854 of 2004

CORAM:

Tuor C.

KEY ISSUES:

Costs - Development Consent :- Respondent sought costs for applicant's unsuccessful costs application.
Quantum of costs to be awarded

DATES OF HEARING:

28/02/05

 
DATE OF JUDGMENT: 

05/27/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms J Hold, Solicitor
SOLICITORS
Verekers Lawyers

RESPONDENT
Ms S Duggan, Barrister
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

27 May 2005

10854 of 2004 (3) George Conomos v Mosman Municipal Council

JUDGMENT

1 On 29 March 2005, for the reasons published in Conomos v Mosman Municipal Council [2005] NSWLEC 137, I determine that, the subject to the concurrence of the Chief Judge, it is appropriate that the Applicant pay the council’s costs for the motion on 28 February 2005. The quantum of the costs was to be determined and to be included in any order that I should make. To that end, the parties were directed to provide written submissions; the council identifying the quantum it seeks to which the Applicant was to respond.

2 The parties have complied with the direction.

3 The council seeks the following costs:

1. Counsel’s fees in respect of advice and appearance at the motion - $3,200 (exclusive of GST)

2. Pike Pike & Fenwick professional costs of $1,325 (exclusive of GST) based on five hours at an hourly rate of $265 per hour.

4 The Applicant's response dealt mainly with reasons why the costs for the class one appeal were sought and were justified. I refused this application for costs on 28 February 2005 for the reasons given in Conomos v Mosman Municipal Council [2005] NSWLEC 118. In relation to the quantum of costs sought by council, the Applicant’s submission was:

The Applicant opposes the award of these costs to the Respondent and submits that the costs sought are excessive. First, the costs application did not require Counsel to be briefed. Secondly, whilst the rate of $265.00 per hour is reasonable, it is submitted that the time needed to deal with this matter appears excessive.

5 I accept the applicant’s submission in relation to the need for Counsel to be briefed. While it is a party’s prerogative to brief Counsel if it so wishes, it is not something that was necessitated by the complexity of the issues before the Court. The need for both an experienced solicitor and Counsel is therefore not a reasonable cost that should be borne by the Applicant and I have deleted this amount from the costs to be awarded.

6 In relation to the amount of time, although not itemised, the five hours include briefing, discussion and correspondence with Counsel. For the reasons given above this cost is not reasonable, however, if Counsel had not been briefed, a greater number of hours may have been incurred by Pike Pike & Fenwick to prepare the case. In the absence of requesting a further breakdown of costs, I find that, on balance, the amount of $1,325.00 (plus GST) is reasonable.

Order

7 Subject of the concurrence of the Chief Judge, the Court orders that:

1. The Applicant pay the Respondent’s costs of $1,325.00 (plus GST) for the motion heard on 28 February 2005.

_________________________
Annelise Tuor
Commissioner of the Court