Develtor Property Group Pty Ltd v Newcastle City Council

[2001] NSWLEC 47

Land and Environment Court

of New South Wales

CITATION:	Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47
PARTIES:	APPLICANT: Develtor Property Group P/L RESPONDENT: Newcastle City Council
FILE NUMBER(S):	40144 of 2000
CORAM:	Bignold J
KEY ISSUES:	Costs :- Class 4 proceedings- Applicant obtaining declaration in proceedings where Respondent files a submitting appearance
LEGISLATION CITED:	Supreme Court Act 1970, Pt 11 r 4(3)
CASES CITED:	Corporate Affairs Commission of NSW v Transphere Pty Ltd (1988) 15 NSWLR 596; McColl v Ryan (1968) 89 WN Pt 1 (NSW) 74; Metzger v Department of Health and Social Security (1977) 3AllER 444 at 451; P E Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437; Trust Corp Australia Ltd v Perpetual Trustees WA Ltd (1995) 36 NSWLR 654
DATES OF HEARING:	18/12/00, 18/01/01, 08/02/01, 14/02/01 (written submissions)
DATE OF JUDGMENT:	03/14/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr W Davison SC SOLICITORS Bilbie Dan RESPONDENT: Submitting Appearance SOLICITORS Sparke Helmore

JUDGMENT:

IN THE LAND AND

Matter No. 40144 of 2000

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

14 March 2001

DEVELTOR PROPERTY GROUP PTY LIMITED

Applicant

v

NEWCASTLE CITY COUNCIL

Respondent

JUDGMENT ON COSTS

Bignold J:

A. INTRODUCTION

1. The Applicant, in concluded class 4 proceedings seeks an order for costs on the indemnity basis against the Respondent, which did not actively participate in the proceedings, and which opposes the costs order claimed.

2. By its class 4 application filed 26 September 2000, the Applicant claimed declaratory and mandatory relief against the Respondent in respect of an approval granted by the Respondent in late 1999 for the erection of 48 dwellings on land known as 292 Park Avenue, Kotara (the proposed residential development).

3. On 1 November 2000, the Respondent filed a submitting appearance save as to costs.

4. Thereafter, the Applicant sought and obtained a hearing date in respect of its class 4 application. On 18 December 2000, I heard the Applicant’s case without the Respondent’s participation by virtue of its submitting appearance (save for its attendance by its City agent on a watching brief). At the conclusion of the Applicant’s presentation of the case I delivered an extempore judgment in the proceedings in which I made the following declarations
1. The approval by the Respondent between 25 November 1999 and 7 December 1999 of Building Application 99/582 is taken to be a development consent granted under the amended Environmental Planning and Assessment Act 1979 in accordance with clause 45 of the Environmental Planning and Assessment (Savings and Transitional) Regulations 1998.
2. Consequential to the above declaration, the Applicant is entitled to the release of Building Application 99/582 and stamped plans upon satisfaction of the conditions in the Respondent’s letter to the Applicant dated 25 November 1999

5. In my reasons for judgment, I held that the Applicant had established its entitlement to the declaratory relief claimed by establishing
(i.) the relevant facts pertaining to the grant of development consent in 1995 and the grant of building approval in 1999—both in respect of the proposed residential development; and
(ii.) the relevance, and application, to those established facts of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998, cl 36 and cl 45;

6. In so establishing its entitlement, the Applicant was required to present its case to the Court which, of course, by virtue of the Respondent’s submitting appearance, did not have the benefit of any contrary case.

7. As will hereafter be shown, the fact that the Applicant had to present its case to establish its entitlement to the declaratory relief granted, notwithstanding the Respondent’s submitting appearance, has an important bearing upon the adjudication of the Applicant’s disputed costs claim.

8. In the course of the hearing and after I had delivered extempore judgment, I also entertained the Applicant’s argument for a costs order payable on an indemnity basis against the Respondent. However, with the Applicant’s concurrence, I reserved the question of costs in order to give the Respondent the opportunity to respond. Directions were given for the Respondent’s submissions to be provided in written form and for the Applicant to have the opportunity to reply in written form. Both parties have filed written submissions, the Applicant’s submissions in reply being received a little outside the time allowed for in my direction, provoking the Respondent’s objection to their reception and its alternative assertion that they were, in any event, not substantially submissions in reply, but submissions in chief, some of which were said to be inconsistent with the Applicant’s oral submissions in chief made at the hearing in support of its costs claim.

9. In order to fairly resolve the Respondent’s procedural objection to the Applicant’s late submissions, I granted leave for the Respondent to file further submissions in reply to those aspects of the Applicant’s written submissions that were not strictly in reply and the Respondent has filed further written submissions. In the result in my adjudication on the disputed costs question, I have decided to consider all submissions, both oral and written, that have been advanced by the parties on the question of costs.

B. THE APPLICANT’S CLAIM FOR A COSTS ORDER AGAINST THE RESPONDENT

10. In its oral argument in support of a costs order on the indemnity basis, the Applicant made the following submissions:
(i.) The Respondent was not entitled to contest (as it had done so until it filed its submitting appearance) the plain meaning of the Environmental Planning and Assessment (Savings and Transitional) Regulations 1998; (cl 45);
(ii.) Had the Respondent properly considered the Applicant’s representations as to the meaning and application of cl 45, there would have been no need for the Applicant to have brought the proceedings.
(iii.) It is accepted that if the Applicant were seeking “the luxury of a declaration against the whole world” concerning the application of cl 45 to the 1999 Building Approval that it had obtained from the Respondent, the Applicant would not have been entitled to indemnity costs against the Respondent.
(iv.) The need for the Applicant to obtain the declaratory relief was directly caused by the Respondent’s openly contesting the Applicant’s representations on the application of cl 45 to the 1999 Building Approval granted to the Applicant.
(v.) By filing its submitting appearance, the Respondent had belatedly conceded the weakness of its position in relation to the application of cl 45.

C. THE RESPONDENT’S ARGUMENT AGAINST THE COSTS CLAIM

11. The Respondent’s written submissions in reply to the Applicant’s case for a costs order on the indemnity basis can be summarised as follows:
(i.) By virtue of the filing of its submitting appearance on 1 November 2000, the Respondent should not be held liable to any costs incurred by the Applicant in the proceedings after that date.
(ii.) Moreover, by the time it filed its submitting appearance, the Respondent had earlier notified the Applicant that it would release the stamped plans, the subject of the 1999 Building Approval that it had granted to the Applicant. Accordingly, there was no need for the Applicant to pursue the proceedings to obtain any mandatory order for the release of the stamped plans (a result confirmed by the fact that no mandatory relief was granted by the Court in its orders made on 18 December 2000).
(iii.) To the extent that the Applicant’s case is founded upon the proposition that the Respondent, as “consent authority” under the Environmental Planning and Assessment Act 1979 was bound to provide the Applicant with legal advice as to the meaning and application of cl 45 (eg by concurring with the advice that had been tendered by the Applicant), such a foundation is entirely misconceived.
(iv.) The only inference that is available to the Court from the fact that the Applicant pursued the proceedings after 1 November 2000 (when the Respondent filed its submitting appearance) is that it deliberately chose to seek “for its own comfort and security” the benefit of the declarations that were made by the Court, after the Applicant had established its entitlement to that declaratory relief.

D. THE APPLICANT’S FURTHER ARGUMENTS FOR A COSTS ORDER

12. In its written submissions in reply, the Applicant made for the first time the extravagant and serious allegation that the Respondent had not held “in good faith” the opinions which it had expressed to the Applicant prior to the litigation, concerning the effect and application of cl 45. This allegation is made despite the fact that the Respondent’s Solicitors had provided written advice in their letter to the Applicant’s Solicitor dated 17 July 2000 for their opinion that cl 45 did not apply to convert into a development consent, the 1999 Building Approval. That opinion was confirmed in the later letter dated 7 August 2000, which led the Applicant’s Solicitor to obtain Senior Counsel’s opinion to the contrary, and to provide it to the Respondent’s Solicitor on 22 August 2000. It was only after this initiative proved unavailing that the Applicant commenced the proceedings on 26 September 2000.

13. There is no need for me to examine that Respondent’s Solicitor’s opinion in any great detail, it being sufficient to note that the reasoned basis for the opinion was that the opening words of cl 45(1), namely “Subject to Division 1” provided an express exception to the operation of the clause (it being noted that the 1999 Building Approval had been granted pursuant to Division 1).

14. Although the Respondent’s Solicitor’s opinion is based upon a construction of cl 45 which is contrary to the construction that I ultimately adopted in giving my judgment on 18 December 2000, there can, in my judgment, be no reasonable warrant for the Applicant’s extravagant allegation that the Respondent did not hold its opinion bona fide or, a fortiori for the Applicant’s allied and more extravagant submission that the opinion of the Respondent’s Solicitors “cannot convert the Council’s previously stated position in respect of the status of Building Approval 99/582 from one wholly lacking in bona fides to one sincerely and justifiably held on the basis of competent legal advice. The lack of cogency in the reasoning contained in the Council’s Solicitor’s letters suggests an attempt to do just that”.

15. The reference in this extravagant submission to the Council’s “previously stated position” is, I assume, intended as a reference to what is revealed in the affidavit of Mr Bradley Ure, a Director of the Applicant, which was read at the hearing. In par 16 of his affidavit, he annexes a letter dated 21 March 2000 that he had received from Geoffrey Douglass, the Respondent’s Assessment Team Co-ordinator (East) which refers to the fact that the 1995 development consent had lapsed in February 2000 upon the expiry of the statutory five year lapsing period, and further advises that the 1999 Building Approval “cannot now be acted upon” if the development consent has in fact lapsed.

16. The letter invited a response from the Applicant “so that the status of the approvals can be resolved”.

17. In par 17 and par 18 of his affidavit, Mr Ure deposes to conversations he had with Mr Douglass following receipt of the letter dated 21 March 2000, which includes attributing to Mr Douglass the following words:

The consent to DA 94/305 has lapsed. BA 99/582 is linked to that consent and cannot be acted upon until you obtain a fresh consent. I suggest that you lodge a fresh development application for a less dense development, say 30 - 33 units.

18. On the basis of this evidence, the Applicant submitted that “(T)he Council, through its officer, sought, by purporting to hold such a view, to compel the Applicant to seek consent for a different less dense development”.

19. In my judgment, this too is an extravagant submission, which is not supported by the evidence, and which I also reject.

20. Ultimately, the acceptance of the Applicant’s allegation of the lack of bona fides on the Respondent’s part depends upon the Court drawing that inference from materials that in my opinion, do not remotely support the drawing of such a grave and serious inference (ie the absence of good faith) against a public authority. The Applicant’s extravagant allegations are no more than a self-indulgence in wild speculation and are deserving of nothing but utter and peremptory rejection, which I do, in rejecting the Applicant’s submission based upon those allegations.

21. A more restrained variant submission was made in the Applicant’s written submissions, namely that the Respondent’s conduct, between March and October 2000 had “compelled the Applicant” to commence and to prosecute to finality the present proceedings.

22. I do not need to rehearse in any detail the evidence concerning the Respondent’s conduct. It is essentially confined to what I have earlier stated and principally comprises a large body of correspondence passing between the parties’ respective solicitors, both prior to the commencement of the present proceedings and during the course of the litigation.

23. Clearly, that correspondence establishes that before the proceedings were commenced on 26 September 2000, the Respondent was maintaining its opinion that the 1999 Building Approval could not be acted upon without the grant of a further complementary development consent, and that in consequence, the stamped building plans would not be released tot he Applicant.

24. However, equally clearly, the correspondence establishes that before the first return date for those proceedings, the Respondent’s Solicitors had advised the Applicant’s Solicitor by letter dated 17 October 2000 that the Respondent would release the stamped plans for the 1999 Building Approval upon the Applicant satisfying the requirements set forth in the Respondent’s letter dated 25 November 1999 (notifying the Applicant of the grant of that approval).

25. What then, is there in the correspondence that supports the Applicant’s allegation that the Respondent’s conduct “compelled” the Applicant to prosecute the proceedings? The Applicant chiefly relies upon the fact that the Respondent’s Solicitor’s letter dated 17 October 2000 included the following statement:

Council reserves its right to commence proceedings for any breach of the Environmental Planning and Assessment Act 1979 which may occur in the future

and the fact that its subsequent attempts to have the Respondent clarify the intent of this statement failed to elicit a satisfactory response. In particular, the Respondent never expressed its opinion on the question whether the 1999 Building Approval operated as a development consent by virtue of cl 45 (which was the question answered affirmatively by the Court making the first declaration in its judgment of 18 December 2000).

26. However, what the correspondence clearly establishes is that by letter dated 30 October 2000, the Respondent’s Solicitors confirmed their earlier advice that the Council would release the stamped plans for the 1999 Building Approval and that “the Council will be filing a submitting appearance save as to costs”.

27. As previously noted, on 1 November 2000, the Respondent filed its submitting appearance save as to costs.

28. Finally, it is to be noted that by letter dated 15 November 2000 (in response to the Applicant’s Solicitor’s letter of the same date putting the Respondent on notice that the Applicant would be seeking costs on the indemnity basis), the Respondent’s Solicitors maintained the Respondent’s previously stated position in the litigation including its repudiation of any role “as an arbiter of the legal position” in respect of the 1999 Building Approval.

E. ADJUDICATION ON THE COMPETING ARGUMENTS

29. For reasons presently to be stated, I am of the opinion that the Applicant is entitled to its costs on a party and party basis but only those costs incurred in the proceedings up to 1 November 2000 when the Respondent filed its submitting appearance (save as to costs), but that the Respondent is entitled to its costs in respect of the argument on costs upon which it has been entirely successful in resisting the Applicant’s claim to costs in the proceedings generally, on either an indemnity basis (as principally contended for) or on a party and party basis.

30. The costs order in favour of the Applicant up to the date when the Respondent filed its submitting appearance has not been in issue, the real dispute on costs being confined to the Applicant’s claim for costs in the proceedings generally and in particular to costs incurred after the date that the Respondent filed its submitting appearance. Accordingly, the following reasons are confined to my decision that the Applicant has failed in its costs claim and that the Respondent, in resisting that claim has been successful and is accordingly entitled to its costs on that disputed issue.

31. Stated briefly, my reasons for so concluding are founded upon the combined effects on costs of the following considerations—
(i.) the Respondent’s submitting appearance;
(ii.) the Applicant’s deliberate and free choice to prosecute the proceedings after it had been informed that the Respondent would release the stamped plans for the 1999 Building Application and after the Respondent had filed its submitting evidence; and
(iii.) the necessity for the Applicant to establish its entitlement to the declaratory relief, notwithstanding the Respondent’s submitting appearance.

32. I shall consider each of these matters separately.

(i) The Respondent’s Submitting Appearance

33. A striking omission from the content of the Applicant’s varied arguments in support of a costs order in its favour, is the fact that the Respondent’s submitting appearance is entirely ignored.

34. Despite this omission, effect must be given to the Respondent’s submitting appearance in circumstances where no question or doubt concerning the validity or propriety of that submitting appearance has been raised by the Applicant. In this respect, I do not regard the Applicant’s oft repeated assertion that it was “compelled by the Respondent’s conduct to prosecute the proceedings” as impugning either the integrity or efficacy of the Respondent’s submitting appearance.

35. What then, is the effect of the Respondent’s submitting appearance?

36. The facility for filing a submitting appearance is expressly provided for in Pt 11 r 4(3) of the Supreme Court Rules (SCR) which are adopted by the Rules of this Court: vide Pt 6 r 1(1).

37. Part 11 r 4(3) provides as follows:
(3) A defendant who wishes to take no active part in proceedings may—
(a) include in the defendant’s appearance a statement that the defendant submits to the making of all orders sought and the giving or entry of judgment in respect of all claims made; and
(b) add to the statement save as to costs.

38. Although the adopted Rule does not expressly declare the consequences of the filing of a submitting appearance, for the costs of the proceedings (contrast the position expressly provided by Supreme Court Rules Pt 52A r 12 where the respondent to an appeal to the Court of Appeal who files such a submitting appearance is entitled to a costs order against the appellant), it is implicit that a submitting party will not ordinarily be liable to a costs order in respect of any costs incurred in the proceedings subsequent to the filing of the submitting appearance: cf Autistic Association of NSW v Dodson (1999) FCA 715.

39. In Ritchie’s Annotations on SCR Pt 11 r 4(3), reference is made to the judgment of Young J in Trust Corp Australia Ltd v Perpetual Trustees WA Ltd (1995) 36 NSWLR 654. That judgment, in my respectful opinion, contains a scholarly analysis of the practice of submitting appearances in proceedings in equity, in the course of his Honour’s elucidation of the effect of a submitting appearance on the plaintiff’s entitlement to seek judgment on his claim solely based upon the defendant’s admission of that claim that is implicit in the submitting appearance.

40. Although Young J at 660 ultimately accepted the plaintiff’s argument that where a submitting appearance has been filed pursuant to Pt 11 r 4(3) the defendant is not entitled to contest the plaintiff’s claim, his Honour went on to hold that a plaintiff is not automatically entitled to the relief. In this respect, his Honour stated at 660

Courts of Equity have adopted a practice over a long period of time not to make certain types of orders on admissions or without proper examination. This practice manifests itself in many ways. For instance, equity does not make declarations without a proper contradictor. However, this is a discretionary rule as is made clear by Territory Insurance Office v Kerin (1986) 42 NTR 15; 89 FLR 257. Again, a declaration will not be made by consent, at least in a situation where rights other than the rights of the parties might be affected. An affectation will occur if the Court considers that other people might be induced by the fact that the Court has made a declaration in a particular matter to assume that that declaration has been made after full consideration: Myer Queenstown Garden Plaza Pty Ltd v Port Adelaide City Corporation (1975) 11 SASR 504 at 509-510.

This passage (which says nothing of costs consequences of a submitting appearance) is more obviously relevant to my later consideration of the necessity for the Applicant to establish its entitlement to the declaratory relief it obtained, notwithstanding the existence of the Respondent’s submitting appearance.

41. Of greater relevance to the costs implications of the filing of a submitting appearance is the illustration provided by the Court of Appeal’s decision in McColl v Ryan (1968) 89 WN Pt 1 (NSW) 74 where the Court, in granting the declaratory relief claimed in a suit where the Defendant (the Registrar of Companies) had appeared only to submit both at trial and on appeal, ordered the successful plaintiff to pay the defendant’s costs “as a submitting defendant” in the Court below and in the Court of Appeal—see at 78. This decision is to the same effect as is now provided by SCR Pt 52A r 12.

42. In my judgment, the effect of the Respondent’s submitting appearance in the present case, where that appearance has not been challenged or impugned, is that the submitting party is generally to be regarded as immune from any liability for costs incurred in the proceedings after the filing of the submitting appearance save as to costs (although conformably to principle and case law, the submitting party will be liable for costs incurred by the plaintiff up to the date of the filing of the submitting appearance).

(ii) The Applicant’s deliberate and free choice to Prosecute the Proceedings

43. In my opinion, the Applicant, on the evidence, must be taken to have deliberately and freely chosen to prosecute the case after it had received notice from the Respondent’s Solicitors on 17 October 2000 that the Respondent would release the stamped plans for the 1999 Building Approval and after the Respondent had filed its submitting appearance on 1 November 2000.

44. The Applicant’s submission that it was “compelled” to prosecute the proceedings after the Respondent had filed its submitting appearance by “virtue of the Respondent’s conduct” is not supported by the evidence. Once the Respondent had notified the Applicant of its willingness to release the stamped plans, there was no longer any need for the Applicant to pursue the proceedings to obtain mandatory relief (I interpose that in my judgment of 18 December 2000, the relief granted did not include any mandatory order). In these circumstances, there could be no compulsion caused by the Respondent’s conduct requiring the Applicant to pursue the proceedings.

45. Similarly, once the Respondent had filed its submitting appearance there was no possibility of the Respondent contesting the Applicant’s claims to declaratory relief. Accordingly, thereafter there could be no compulsion caused by the Respondent’s conduct requiring the Applicant to pursue the proceedings.

46. In these circumstances, it follows both logically and factually, that the Applicant must be held to have deliberately and voluntarily chosen to prosecute the proceedings in order to obtain the declaratory relief claimed.

47. The Applicant’s submission that the failure or reluctance of the Respondent to accept the Applicant’s representations as to the effect of cl 45 was the cause of “the compulsion” for the Applicant to prosecute the proceedings fails to have proper regard to (i) the effect in law of the Respondent’s submitting appearance: see Trust Corp Aust Ltd; and (ii) the true nature of the declaratory relief claimed.

48. Once the true effect of the Respondent’s submitting appearance is appreciated, the alleged cause of the compulsion simply evaporates. This result is closely related to the nature of the declaratory relief claimed and the incapacity of the Respondent to itself satisfy the claim. The claim was to a declaration of right, something that could only be declared by this Court in the exercise of the exclusive jurisdiction conferred upon it by the Land and Environment Court Act 1979 s 20(2) and s 71. As will presently be demonstrated, it was not a right that could be declared by “consent orders” agreed by the parties.

49. No doubt, the prosecution of the proceedings leading to the grant of declaratory relief resulted in something of value to the Applicant, but in no sense can it be fairly or aptly be concluded that the Respondent’s conduct compelled the Applicant to so prosecute the proceedings.

(iii) The necessity for the Applicant to establish its entitlement to the declaratory relief

50. The passage from Trust Corp Aust Ltd earlier cited reveals the long established practice of Courts of Equity not to make declarations by consent, or without there being any proper contradictor: see Young’s “Declaratory Orders” 2nd ed (1984) at par 601 and his Honour’s later more detailed consideration of the issue in Corporate Affairs Commission of NSW v Transphere Pty Ltd (1988) 15 NSWLR 596 at 603/608.

51. Similarly, this Court will not ordinarily make declarations by consent, or without there being a proper contradictor, or at least where as in the present case, the Respondent has filed a submitting appearance, without the claimant establishing its entitlement to the relief claimed. As Megarry V-C said in Metzger v Department of Health and Social Security (1977) 3AllER 444 at 451:

The Court does not make declarations just because the parties to litigation have chosen to admit something. The Court declares what it has found to be the law after proper argument, not merely after admissions by the parties. There are no declarations without argument: that is quite plain.

52. Accordingly, there can be no legitimate complaint from the Applicant that costs would have been avoided if the Respondent had entered into consent orders, because the Court would not have made, by consent, the declarations claimed, especially since the Court’s orders would probably have the effect of a judgment in rem: see P E Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437.

53. Similarly (albeit somewhat paradoxically) the Applicant cannot legitimately complain about the Respondent’s failure or reluctance to agree with the Applicant’s representations concerning the effect of cl 45 because if there had been no “controversy between the parties”, the declaratory relief would not, on that account, have been granted: see Young at par 203.

F. CONCLUSIONS AND ORDERS

54. For all the foregoing reasons, the Applicant’s claim for costs of the proceedings generally must fail. This means that the question whether costs should be awarded on the claimed indemnity basis does not truly arise.

55. However, as earlier noted, the Applicant is entitled to that part of its costs in the proceedings incurred up to the filing of the Respondent’s submitting appearance on 1 November 2000 because before that action was taken in the proceedings, the Respondent was not only contesting the Applicant’s representations as to the effect of cl 45 but was refusing (at least until 17 October 2000) to release the stamped plans for the 1999 Building Approval.

56. The concessions, expressly or implicitly made by the actions taken by the Respondent after the proceedings had been commenced, means that the Applicant should be compensated in costs for having to bring the proceedings up to the date when the Respondent filed its submitting appearance.

57. Those costs should be on the party and party basis, because the Applicant has not established any case for awarding costs on the indemnity basis, especially in the light of my firm rejection of its serious and unsubstantiated allegation of a lack of bona fides on the part of the Respondent.

58. However, it is obvious that additional costs have been incurred on the Applicant’s disputed claim to costs in the proceedings. In respect of this dispute, the Respondent has been entirely successful because (i) it did not dispute an order for costs on the party and party basis being made against it up to the date when it filed its submitting appearance; and (ii) its arguments have prevailed in respect of the costs in the proceedings incurred thereafter. For this reason, the Respondent should receive its costs incurred on the argument on costs.

59. Accordingly, and for all foregoing reasons, I make the following costs orders:-

1. The Respondent pay the Applicant’s costs of the proceedings up to 1 November 2000 when the Respondent filed its submitting appearance save as to costs, in the sum agreed or failing agreement, as assessed.

2. The Applicant pay the Respondent’s costs incurred in the proceedings on the disputed question of costs in the sum agreed, or failing agreement, as assessed.