Great Lakes Council v Wilkes - [2010] NSWLEC 117

Land and Environment Court

of New South Wales

CITATION: Great Lakes Council v Wilkes [2010] NSWLEC 117

PARTIES:
APPLICANT
Great Lakes Council
FIRST RESPONDENT
Eric Noel Wilkes
SECOND RESPONDENT
Monica Kay Wilkes

FILE NUMBER(S): 40264 of 2008

CORAM: Sheahan J

KEY ISSUES: COSTS :- discontinuation of class 4 proceedings after granting of development consent, dispute as to liability for costs, principles to apply, reasonableness of conduct of the parties, offers to settle costs question, costs of costs hearing

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Australian Securities Commission v Aust-Home Investments Limited and Others (1993) 44 FCR 194
Beilby v Viney Pty Ltd (2000) 113 LGERA 450
Kiama Council v Grant (2006) 143 LGERA 441
Monaghan v Holroyd City Council; Holroyd City Council v Monaghan [2009] NSWLEC 112; (2009) 167 LGERA 321
Sydney City Council v Doltone House Wharf Pty Ltd & Ors [2006] NSWLEC 81
One.Tel Ltd and Others v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548
Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622
J T Stratford & Son Ltd v Lindley & Ors (No.2) [1969] 1 WLR 1547; [1969] 3 All ER 1122

DATES OF HEARING: 23 November 2009

DATE OF JUDGMENT:
9 July 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr T Howard
SOLICITORS
Mallik Rees Lawyers
RESPONDENTS
Mr P McEwen, SC
SOLICITORS
Peter Evans & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

9 July 2010

40264 of 2008 GREAT LAKES COUNCIL v E N & M K WILKES

JUDGMENT

Introduction

1 His Honour: The applicant seeks the court’s leave to discontinue these class 4 proceedings concerning a sawmill, so the only live issue remaining for determination is costs – each side now seeks an order in its favour, and, in the alternative, the respondents submit that each party should pay its own costs. Mrs Wilkes has played no real role in the proceedings so I will refer primarily to her husband as the contradictor of the Council’s case.

2 It should be noted that one order for costs has already been made in the proceedings. On the motion of the respondents, but with the consent of the applicant, Pain J, on 20 March 2009, vacated the substantive hearing set down for five days commencing 30 March 2009, but ordered the respondents to pay the applicant’s “costs thrown away” as a consequence of that order, along with its costs of the motion to vacate.

3 Put shortly, the proceedings were commenced on 17 March 2008, Points of Claim and Defence were exchanged in July 2008, with a Reply filed in November 2008, and the case was set down on 28 November 2008 for hearing over five days commencing 30 March 2009. The whole matter (save for costs) then resolved, without a hearing, after Council granted a consent on 23 July 2009.

4 However, as is so often the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 117
Decision Date: 9 July 2010

CaseChat Overview and Summary

The applicant, Great Lakes Council, sought leave to discontinue class 4 proceedings concerning a sawmill, with the live issue being the costs of the proceedings. Both parties sought orders in their favour, and the respondents argued that each party should bear its own costs. The proceedings were initially set down for a five-day hearing, but were vacated on the motion of the respondents, with the consent of the applicant. The Council ordered the respondents to pay its costs as a consequence of that order, along with the costs of the motion to vacate. The substantive matter then resolved, without a hearing, after the Council granted a consent on 23 July 2009. However, the substantive dispute between the parties had a history that was potentially relevant to the determination of the question of costs. The court was required to tread a difficult path between broad assessment of the evidence and arguments advanced on each side, and conducting a hypothetical trial on the merits, a course prohibited by authorities such as the High Court’s decision in Lai Qin. The court considered the reasonableness of the parties’ conduct during the course of the litigation, and found that both sides had acted reasonably in commencing, defending, and conducting the proceedings until their further prosecution became futile. The court concluded that the most appropriate order in all the circumstances of this case was that each party pay its own costs of the substantive proceedings, save for the costs captured by Pain J’s order. The court also ordered that the Council pay the respondents’ costs from 25 June 2009 onwards, on a party-party basis. The court granted the Council leave to discontinue the proceedings, confirmed Pain J’s order that the respondents were to pay the Council’s costs wasted by the hearing being vacated and the costs of the motion to vacate, and ordered that each party was to pay its own costs for the period up to and including 24 June 2009. The court also ordered that the Council was to pay the respondents’ costs on a party-party basis for the period on and from 25 June 2009, as agreed or as assessed according to law. The exhibits were returned.

Orders