Frevcourt Pty Ltd v Wingecarribee Shire Council [No 3]

[2003] NSWLEC 335

>

Land and Environment Court

of New South Wales

CITATION:	Frevcourt Pty Ltd & Ors v Wingecarribee Shire Council [No 3] [2003] NSWLEC 335
PARTIES:	APPLICANTS Frevcourt Pty Ltd & Ors RESPONDENT Wingecarribee Shire Council
FILE NUMBER(S):	40176 of 2000
CORAM:	Pain J
KEY ISSUES:	Costs :- exercise of discretion - costs should follow the event
LEGISLATION CITED:	Land and Environment Court Act 1979 s 69
CASES CITED:	Frevcourt Pty Ltd & Ors v Wingecarribee Shire Council [2003] NSWLEC 206; Frevcourt Pty Ltd and Ors v Wingecarribee Shire Council (No 2) [2003] NSWLEC 304
DATES OF HEARING:	written submissions - 12/11/2003, 19/11/2003 and 03/12/2003
DATE OF JUDGMENT:	12/12/2003
LEGAL REPRESENTATIVES:	APPLICANTS Mr JJ Webster SC SOLICITORS Levy Peatman RESPONDENT Mr JA Ayling SC SOLICITORS B. Bilinsky & Co

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40176 of 2000

Pain J

12 December 2003

FREVCOURT PTY LTD

(ACN 003 601 787)

PAULINE RUTAR and

LYNTON KETTLE CONSTRUCTIONS PTY LTD

(ACN 002 518 569)

Applicants
v

WINGECARRIBEE SHIRE COUNCIL

Respondent

Judgment on costs

1. I handed down my decision in the main proceedings in this matter on 16 September 2003 (Frevcourt Pty Ltd & Ors v Wingecarribee Shire Council [2003] NSWLEC 206). A further ex tempore judgment was delivered after further hearing on 28 October 2003 which ultimately disposed of the Applicants' case. The Respondent Council was successful in these proceedings and is now seeking its costs. As these are Class 4 proceedings and s 69 of the Land and Environment Court Act 1979 applies, the Court has a broad discretion, which it must exercise judicially, in awarding costs. The usual practice in Class 4 proceedings is that in the absence of disentitling conduct the successful party will obtain a costs order in its favour.

2. I note that there have been five sets of hearing dates in this matter on 26, 28 November 2001 (before Cowdroy J), 25 - 27 March 2002, 9 - 11 Dec 2002, with written submissions submitted before a further short hearing on 3 April 2003 (judgment in relation to that part of the proceedings being delivered on 16 September 2003) and 28 October 2003 (at the conclusion of which a short ex tempore judgment was delivered). The first two sets of hearing dates did not result in any ultimate conclusion of the matter.

3. The Applicants argue that if the Court is minded to make the usual costs order in the Council's favour it ought be modified to the extent that the Council should pay the Applicants' costs thrown away because of the Council's inability to proceed with the hearing on 26 November 2001 before Cowdroy J. Further the Council is alleged to have failed to comply with an agreement relating to the assumption of facts for the hearing before me on 25 to 27 March 2002, as a consequence of which it is said the Applicants' costs were thrown away because no decision could be reached by me. The Applicants argued it should get these costs "thrown away". An alternative argument put by the Applicants was that each party pay its own costs.

4. I have had the benefit of reading the ex tempore judgment of Cowdroy J in Frevcourt Pty Ltd & Ors v Wingecarribee Shire Council (No 2) [2003] NSWLEC 304, dated 28 November 2001 when the first hearing was adjourned. His Honour's judgment records that the hearing had been commenced on 26 November 2001 but adjourned until 28 November 2001 to enable the parties to agree upon various facts (at [2]). His Honour stated at [7]:

[t]he Court does not consider it appropriate to make any order for costs at this stage because the Court will need to be taken, in due course, to all of the facts which have led to the necessity for this adjournment .

5. Now that this matter has been finally concluded it is clear to me that the factual basis for the Applicants' arguments were extremely complicated and it is not readily apparent to me why the Council acted unreasonably in November 2001 in stating that it was unable to proceed at that point because of the state of the evidence. Further, while it would generally be expected that a party would be ready to proceed at a hearing I am also guided by the circumstance that Cowdroy J, the presiding judge, did not feel able to make a decision as to costs at that time. I do not consider costs should be awarded in the Applicants' favour for the 26 - 28 November 2001 hearing.

6. The hearing on 25 - 27 March 2002 before me, at which time the parties attempted to proceed on the basis of agreed assumptions of fact which the defined legal issues were intended to address, further demonstrated the complexity of the factual circumstances of the matter. Ultimately I was unable to make a decision on the legal issues presented at that point on the agreed facts because there was not agreement on a key factual matter. I do not think there is any disentitling conduct on the Council's part which suggests there ought be an award of costs against it because of this.

7. Although the Applicant has made assertions in its submissions that due to the Council's conduct the matter has been much more drawn out and expensive than should have been the case so that the costs of the litigation have been added to, I am unable to agree that the fact the proceedings have been drawn out is necessarily due to the Council's behaviour. This matter was factually very complex and the circumstances of the parties' attempts to proceed to a hearing on more than one occasion confirms that.

8. Further, the Applicants alleged that the Council had generated doubt and uncertainty because of its behaviour before the litigation had commenced in that it refunded some s 94 contributions to the Applicants. I am unable to accept this submission. The refund of some s 94 contributions by the Council before the Applicants chose to commence proceedings cannot be relied on by the Applicants to give rise to any inference that the Applicants were in some way misled into commencing their action. It is for the Applicants to determine whether or not they have a sufficiently strong legal case to commence court action. The actions of the Council relied on by the Applicants do not strike me as relevant to that question.

9. In my judgments handed down on 16 September 2003 and 28 October 2003 the Council has ultimately been completely successful. I think it is appropriate that costs follow the event on this occasion with no qualification of that result as sought by the Applicants.

10. The Court therefore orders:

1. The Applicants must pay the Respondent's costs in these proceedings.

2. The exhibits may be returned.