Hoyts Cinemas Limited (ACN 066 234 900) v Penrith City Council

[2000] NSWLEC 31

Land and Environment Court

of New South Wales

CITATION:	Hoyts Cinemas Limited (ACN 066 234 900) v Penrith City Council & Anor [2000] NSWLEC 31
PARTIES:	Hoyts Cinemas Ltd (Applicant) Penrith City Council (First Respondent Penrith Panther's Rugby League Club Limited (Second Respondent)
FILE NUMBER(S):	40246 of 1998
CORAM:	Lloyd J
KEY ISSUES:	Costs :- Applicant unsuccessful - whether both respondents entitled to orders for costs.
LEGISLATION CITED:	Land & Environment Court Act 1979, s 69
CASES CITED:
DATES OF HEARING:	22/10/99
EX TEMPORE JUDGMENT DATE :	10/22/1999
LEGAL REPRESENTATIVES:	Applicant: D T Miller (Barrister) SOLICITORS: Cutler Hughes & Harris Second Respondent: B A J Coles QC SOLICITORS: Mallesons Stephen Jaques

JUDGMENT:

1. This is a notice of motion by the second respondent for an order that the applicant pay its costs. The principal proceedings were heard on 21 and 22 June 1999 and in a reserved judgment delivered on 13 August 1999 I dismissed the application but reserved the question of costs. The applicant has consented to meeting the first respondent’s costs.

2. The applicant submits that no costs order should be made in favour of the second respondent because it was not a necessary party and its participation in the proceedings added nothing to the case. I do not agree.

3. The second respondent was the beneficiary of the development consent, the validity of which was sought to be impugned by the applicant in the proceedings. It thus had a proprietary interest in seeking to uphold the validity of that consent.

4. Mr Duncan Miller, who appears for the applicant, submits that the primary argument was directed to the council's, that is the first respondent's, conduct in its determination of the development application. There were other questions, namely questions of law which also had to be resolved, in particular the question of the validity of the means of access to the site which formed part of the proposed development for which consent had been granted.

5. Mr Miller also submits that since the primary argument in the case was directed to the council's manner of dealing with the development application and its consideration thereof and the Council sought in the proceedings to uphold the validity of what it had done there was nothing that the second respondent could add.

6. I should say that in relation to the question of access and the validity of consent as regards the access, the Court derived considerable assistance from the participation of Mr Bernard Coles QC who appeared for the second respondent in the proceedings. In particular the Court accepted the submissions of Mr Coles on that issue and those submissions were largely adopted by me in the judgment; and I must say I personally derived considerable assistance on the submissions of Mr Coles QC in this case.

7. It was in my opinion necessary for Mr Coles QC to be here throughout the case, both to hear the applicant's opening, to be present when the evidence (which was largely documentary) was tendered and to be here when the submissions of the other parties were made so that his submissions could be modified accordingly if necessary. It was also proper I think for Mr Coles QC to prepare submissions on all the issues that were raised in the proceedings lest any should be overlooked by the first respondent.

8. In my opinion, although the Court has a wide ranging discretion as to costs under s 69 of the Land & Environment Court Act 1979 that discretion must be exercised judicially. It is a cardinal principle in the exercise of that judicial discretion, that a successful party should except in special circumstances have its costs.

9. I n my opinion there is nothing in the present case which should displace that principle.

10. Accordingly I make the order sought in para 1 of the second respondent's notice of motion dated 2 September 1999, as follows:

Order that the applicant pay the second respondent’s costs (pursuant to s 69(2) Land & Environment Court Act 1979)