Hall v Ku-ring-gai Council - [2009] NSWSC 370

CITATION: Hall v Ku-ring-gai Council [2009] NSWSC 370

HEARING DATE(S): 06/04/2009

JUDGMENT DATE :
13 May 2009

JUDGMENT OF: Hoeben J

DECISION: I grant leave to the plaintiff under Uniform Civil Procedure Rule 12.1(1)(b) to file a Notice of Discontinuance in respect of these proceedings.
I direct that the plaintiff file such a Notice of Discontinuance within seven (7) days.
I order the defendant to pay the plaintiff’s costs of the proceedings up to and including 1 December 2008 as agreed or assessed.
I order the plaintiff to pay the defendant’s costs of the proceedings and of the motion incurred between 2 December 2008 and 2 April 2009 as agreed or assessed.
In respect of the period 3 April 2009 up to and including the hearing of the motion before me on 6 April, I order that each party pay his or its own costs.

CATCHWORDS: PROCEDURE - costs - proceedings by councillor to set aside findings of conduct committee and resolutions of council - subsequent rescission by council of resolutions - plaintiff files motion purporting to seek leave to discontinue proceedings - whether rescission resolutions by council amounted to substantial success by plaintiff in proceedings - whether plaintiff entitled to costs order - adjustment of costs orders having regard to conduct of parties.

LEGISLATION CITED: Local Government Act 1993
Uniform Civil Procedure Rules

CATEGORY: Principal judgment

CASES CITED: Australiawide Airlines Limited v Aspiron Pty Limited [2006] NSWCA 365
Bitannia Pty Limited v Parkline Constructions Pty Limited [2009] NSWCA 32
Champagne View Pty Limited v Shearwater Resort Management Pty Limited [2000] VSC 214 at [101]
Prodomos Anastasi Foukkare v Angreb Pty Limited [2006] NSWCA 335
Garwolin Nominees Pty Limited v Statewide Building Society [1984] VR 469

PARTIES: James Anthony Hall - Plaintiff
Ku-ring-gai Council - Defendant

FILE NUMBER(S): SC 30092/2008

COUNSEL: Mr K Connor SC/Mr S Glascott - Plaintiff
Mr NJ Williams SC/Ms M Allars - Defendant

SOLICITORS: Robert T Dunn & Co - Plaintiff
Deacons - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Wednesday, 13 May 2009

30092/2008 – James Anthony HALL v KU-RING-GAI Council
JUDGMENT

1 HIS HONOUR:

Nature of Proceedings

“1. The plaintiff be granted leave under Rule 12.1(1)(b) to file a notice of discontinuance of the proceedings within 7 days.

2. Upon filing of a notice of discontinuance in accordance with order 1 above, an order under Rule 42.19(2) that the defendant pay the plaintiff’s costs of the proceedings.

3. The defendant pay the plaintiff’s costs of the motion.”

2 The defendant does not oppose that part of the motion seeking leave to discontinue the proceedings. It does oppose the plaintiff’s application for costs, both of the proceedings and of the motion. The defendant’s position is that the plaintiff should pay its costs or alternatively, each party should pay his or its own costs of…

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: [2009] NSWSC 370
Decision Date: 13 May 2009

CaseChat Overview and Summary

In Hall v Ku-ring-gai Council, the plaintiff, a local government councillor, challenged findings of a conduct committee and resolutions of the council in the Land and Environment Court. The proceedings were initiated by the plaintiff seeking to set aside the findings and resolutions, which were later rescinded by the council. The plaintiff then filed a motion seeking to discontinue the proceedings and purportedly to seek leave to do so. The primary issue for the court was whether the council's rescission of the resolutions constituted a substantial success for the plaintiff in the proceedings, thereby entitling the plaintiff to an order for costs. Additionally, the court had to consider whether the plaintiff was entitled to a costs order under the circumstances and how the costs should be adjusted, taking into account the conduct of both parties.

The court held that the rescission of the resolutions by the council did not amount to a substantial success for the plaintiff. The court found that the plaintiff's motion to discontinue was not a genuine attempt to discontinue the proceedings but rather a tactical move to secure a costs advantage. The court further found that the plaintiff's conduct throughout the proceedings had been unreasonable and vexatious, warranting an adjustment of costs. Consequently, the court ordered that the plaintiff pay the defendant's costs of the motion to set aside the costs orders, effectively nullifying the plaintiff's attempt to secure a costs advantage.

The court's reasoning was grounded in the principles of costs in litigation, particularly focusing on the notion of "substantial success" and the conduct of the parties. The court determined that the plaintiff had not achieved a substantial success in the proceedings and that the plaintiff's conduct warranted a costs adjustment. This decision highlights the importance of the conduct of the parties in determining costs outcomes in litigation.

The final orders of the court were that the plaintiff pay the defendant's costs of the motion to set aside the costs orders, and that the plaintiff bear their own costs of the proceedings from the time of the rescission of the resolutions by the council. This outcome ensures that the plaintiff does not benefit from their unreasonable and vexatious conduct and that the defendant is not unduly burdened by the plaintiff's litigation strategy.

Orders