Contara Pty Ltd v Sydney Metro (No 2)

Land and Environment Court

New South Wales

Medium Neutral Citation:

Contara Pty Ltd v Sydney Metro (No 2) [2024] NSWLEC 45

Hearing dates:

19 March, 2 May 2024

Date of orders:

02 May 2024

Decision date:

02 May 2024

Jurisdiction:

Class 3

Before:

Pain J

Decision:

The Court orders:

1. In relation to the Respondent’s notice of motion dated 2 August 2023 costs are in the cause.

Catchwords:

COSTS – award of costs of notice of motion to dismiss notices to produce in compulsory acquisition compensation claim – costs in the cause order made

Legislation Cited:

Land Acquisition (Just Terms Compensation) Act 1991 (NSW)

Land and Environment Court Rules 2007 (NSW), r 3.7

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248

Dibb v Transport for NSW (No 2) [2024] NSWLEC 11

Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328

Minister for Environment v Florence (1979) 21 SASR 108

Category:

Costs

Parties:

Contara Pty Ltd (Applicant)
Sydney Metro (Respondent)

Representation:

Counsel:
R Hall SC with T Poisal (Applicant)
C Norton (Respondent)

Solicitors:
Speed and Stracey Lawyers Pty Limited (Applicant)
Ashurst Solicitors (Respondent)

File Number(s):

2023/80464-003

EX TEMPORE JUDGMENT on costs

1. The Applicant seeks compensation under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) for the compulsory acquisition of its interest in land in 37 Bligh Street Sydney by Sydney Metro the Respondent. This Class 3 proceeding was commenced on 10 March 2023.

2. On 19 July 2023 the Applicant filed and served two notices to produce on Sydney Metro the Respondent seeking a number of categories of documents.

3. On 2 August 2023 the Respondent filed a notice of motion seeking to set aside both notices to produce. The Applicant opposed the notice of motion. The notice of motion was to be heard on 19 March 2024. The parties agreed on revised terms of the notices to produce making it unnecessary to hear and determine the notice of motion. By consent, the Court made orders varying the terms of the notices to produce and other consequential orders.

4. The parties are in dispute about the appropriate costs order in relation to the Respondent’s notice of motion. The Respondent submits that the Court should order that each party is to pay its own costs of the motion. The Applicant submits that the appropriate costs order for the motion is costs in the cause.

5. The parties agree that a compromise was reached in the relation to the notices to produce the subject of the notice of motion and the Court does not need to further consider the events after the notice of motion was filed. As the argument developed in the course of the hearing, the focus of the Respondent’s position was the negotiations between the parties’ solicitors as reflected in correspondence before the notices to produce were filed in court by the Applicant following which the Respondent then filed its notice of motion as follows.