Edmondson v Warringah Council [No 2]

[1999] NSWLEC 258

Land and Environment Court

of New South Wales

CITATION:

Edmondson and Anor v Warringah Council and Anor [No 2] [1999] NSWLEC 258

PARTIES

APPLICANTS:
Edmondson and Anor

RESPONDENTS:
Warringah Council and Anor

NUMBER:

40059 of 1998

CORAM:

Talbot J

KEY ISSUES:

Costs :- Bullock order - applicant not successful on all issues

LEGISLATION CITED:

DATES OF HEARING:

11/23/1999; 11/26/1999

DATE OF JUDGMENT DELIVERY:

12/01/1999

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr I J Hemmings (Barrister)
SOLICITORS:
Hones Lawyers

FIRST RESPONDENT:
Mr A Hudson (solicitor)
SOLICITORS:
Wilshire Webb

SECOND RESPONDENT:
Mr D P Wilson (Barrister)
SOLICITORS:
Terrence W Riley

JUDGMENT:
IN THE LAND AND Matter No. 40059 of 1998
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 1 December 1999

Mark Ronald Edmondson & Owen Mark Southwood
Applicants

v
Warringah Council
First Respondent
Robert Giltinan [No 2]

Second Respondent

REASONS FOR JUDGMENT


1. Following judgment delivered on 15 September 1999, final declarations and orders were made.

2. No orders have been made against the second respondent except to the extent that the lease between the first and second respondents has been set aside.

3. Declarations have been made in relation to the manner of the exercise of the council’s powers in regard to the calling of tenders and the grant of a lease for tennis and squash court facilities at District Park, North Manly.

4. There is no adverse finding against the second respondent.

5. The first respondent contends that the applicants should not recover the whole of their costs in the proceedings. There were a number of succinct issues raised by the applicants and in respect of which the Court found in favour of the respondents. Only one of these issues involved discrete evidence. That evidence comprised documents and records in relation to a closed meeting of the council. The Court was not persuaded that the resolution to move into closed session was made contrary to the provisions of the Local Government Act 1993 and Regulations.

6. The general position is that normally it is a proper exercise of the Court’s discretion to require that the unsuccessful party be ordered to pay the successful party’s costs. The conventional approach where there are multiple issues and a party succeeds on some issues and not on others is that ordinarily, it will nevertheless be appropriate to award costs to the successful party without seeking to differentiate between the issues, unless the unsuccessful party succeeds on issues that occupied a considerable time or unless the issues are clearly dominant and can be separated. Neither of those tests are satisfied in the present case and accordingly the applicants are entitled to recover the whole of their costs.

7. Mr Wilson submits on behalf of the second respondent that, as no direct relief was sought against his client who was joined as a respondent unwillingly, the applicants should be ordered to pay the costs of the second respondent and to add those costs to their own to be paid by the first respondent, against whom the action has succeeded. No fault was found with any action of the second respondent and no order has been made against it. It was entirely due to the failure of the first respondent to comply with its legal responsibilities that led to the invalidity of the tender process and the setting aside of the lease. Mr Wilson relies upon the principles adopted in Bullock v London General Omnibus Company [1907] 1 KB 264 and Sanderson v Blyth Theatre Company [1903] 2 KB 533.

8. Mr Hudson, who appears for the council, suggests that the second respondent could have entered a submitting appearance. I do not agree. Although no relief was sought against the second respondent, nevertheless he had a vital interest in the outcome of the proceedings. It was appropriate for the second respondent to maintain a separate position to that of the council.

9. The second respondent gave evidence particularly relevant to the issue of discretion. Although Mr Wilson generally adopted the submissions made by the council’s legal representative, he nevertheless conducted a separate case and urged the Court not to make any orders which would be contrary to the interest of his client. The second respondent was unsuccessful in that respect. He cannot therefore be regarded as a successful party, albeit an unwilling respondent.

10. The second respondent has incurred the burden of his own costs and has suffered the disadvantage of losing any entitlement to carry on business pursuant to the lease.

11. In the Court’s opinion, in the circumstances, it is appropriate that the first respondent should bear the responsibility for the whole of the applicants’ costs and that as between the applicants and the second respondent, and the first and second respondents, there shall be no order as to costs.

12. The Court makes the following orders:-


1. The first respondent is ordered to pay the costs of the applicants in the proceedings.

2. As between the applicants and the second respondent, there is no order as to costs.