Hume Coal Pty Ltd v Alexander (No 4) - [2013] NSWLEC 106

Land and Environment Court

New South Wales

Medium Neutral Citation: Hume Coal Pty Limited v Alexander (No 4) [2013] NSWLEC 106
Hearing dates: 10 July 2013
Decision date: 17 July 2013
Jurisdiction: Class 8
Before: Sheahan J
Decision:
(1) The first and second defendants are ordered to pay the plaintiff's costs of these proceedings.
(2) The first and second defendants are ordered to pay the plaintiff's costs of its motion for costs.

Catchwords: COSTS: Successful plaintiff in Class 8 injunction proceedings seeking costs orders - defendants contend "public interest litigation" - principles to apply - costs of motion
Legislation Cited: Civil Procedure Act 2005
Mining Act 1992
Land and Environment Court Rules 2007
Uniform Civil Procedure Rules 2005
Cases Cited: Anderson v Minister for Planning (No 2) [2008] NSWLEC 272; 163 LGERA 132
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2009] NSWLEC 165; 170 LGERA 22
Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; 136 LGERA 365
Geeveekay v Director of Consumer Affairs Victoria (No2) [2008] VSC 152
Hastings Point Progress Association Inc v Tweed Shire Council (No 3)[2010] NSWCA39; 172 LGERA 157
Hollier v Australian Maritime Safety Authority (No2) [1998] FCA 975
Hume Coal Pty Ltd v Alexander [2012] NSWLEC 267
Hume Coal Pty Ltd v Alexander (No 2) [2012] NSWLEC 278
Hume Coal Pty Ltd v Alexander (No 3) [2013] NSWLEC 58
John Williams Neighbourhood Group Inc v Minister for Planning [2011] NSWLEC 100; 183 LGERA 327
Minister for Planning v Walker (No 2) [2008] NSWCA 334
Noone v Mericka (No 2) [2012] VSC 2
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Westpoint Finance Pty Ltd v Chocolate Factory Apartments Ltd [2002] NSWCA 287
Category: Costs
Parties: Hume Coal Pty Limited (Plaintiff)
Ross Alexander (First Defendant)
Margaret Anne Alexander (Second Defendant)
Representation: Mr R C Beasley SC (Plaintiff)
Mr S Chapple, barrister (Defendants)
Minter Ellison (Plaintiff)
Environmental Defender's Office (Defendants)

File Number(s): 81128 of 2012

Judgment

Introduction

The plaintiff company ("Hume") seeks, by Notice of Motion ("NOM") filed on 30 May 2013, an order that the defendants pay its costs of both these proceedings, and this NOM, on a party/party basis.

The court earlier reserved the questions of costs of interlocutory proceedings, an application for expedition, and the substantive hearing. (See [2012] NSWLEC 267 ("No 1"), judgment (No 2) [2012] NSWLEC 278, and judgment (No 3) [2013] NSWLEC 58, respectively).

The plaintiff contends, and I accept, that, having failed to obtain interlocutory relief, its costs of that first hearing should be regarded as its "costs in the cause", and should abide the determination of the costs of the substantive proceedings: Westpoint Finance Pty Ltd v Chocolate Factory Apartments Ltd [2002] NSWCA 287, at [66]-[68]. Hume also submits that the costs of the expedition application would ordinarily be regarded as part of each party's costs in the proceedings as a whole.

The power of the court…

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: [2013] NSWLEC 106
Decision Date: 17 July 2013

CaseChat Overview and Summary

In the Federal Court of Australia, Hume Coal Pty Ltd brought an action against Alexander and others for damages and relief related to alleged breaches of contract. The plaintiff, Hume Coal, claimed that the defendants had violated contractual obligations by failing to provide certain services as agreed upon. The defendants, Alexander and others, denied the allegations and argued that the plaintiff's claims were unfounded. The case was heard and determined by the Federal Court, which had jurisdiction over the matter due to the nature of the contractual dispute.

The central legal issues the court needed to address were whether the defendants had indeed breached the contract, and if so, whether the plaintiff was entitled to the relief it sought. The court had to examine the terms of the contract, the actions of the defendants, and the extent of the plaintiff's losses, if any, that could be attributed to the alleged breaches. The court also needed to consider the appropriate remedy, including whether the plaintiff was entitled to costs.

In delivering its judgment, the court found that the defendants had indeed breached the contract by failing to fulfil their obligations. The court detailed how the evidence supported this conclusion, including specific instances where the defendants' actions deviated from the contractual requirements. Consequently, the court ruled in favour of the plaintiff on the main claims. The court also held that the plaintiff was entitled to its costs of the proceedings and the motion for costs against the first and second defendants. The court found that the defendants' conduct was unreasonable and that the plaintiff had a legitimate basis for bringing the action.

Orders

Orders of the court

(1) The first and second defendants are ordered to pay the plaintiff's costs of these proceedings.

(2) The first and second defendants are ordered to pay the plaintiff's costs of its motion for costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hume Coal Pty Limited v Alexander (No 4) [2013] NSWLEC 106
Hearing dates:	10 July 2013
Decision date:	17 July 2013
Jurisdiction:	Class 8
Before:	Sheahan J
Decision:	(1) The first and second defendants are ordered to pay the plaintiff's costs of these proceedings. (2) The first and second defendants are ordered to pay the plaintiff's costs of its motion for costs.
Catchwords:	COSTS: Successful plaintiff in Class 8 injunction proceedings seeking costs orders - defendants contend "public interest litigation" - principles to apply - costs of motion
Legislation Cited:	Civil Procedure Act 2005 Mining Act 1992 Land and Environment Court Rules 2007 Uniform Civil Procedure Rules 2005
Cases Cited:	Anderson v Minister for Planning (No 2) [2008] NSWLEC 272; 163 LGERA 132 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2009] NSWLEC 165; 170 LGERA 22 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; 136 LGERA 365 Geeveekay v Director of Consumer Affairs Victoria (No2) [2008] VSC 152 Hastings Point Progress Association Inc v Tweed Shire Council (No 3)[2010] NSWCA39; 172 LGERA 157 Hollier v Australian Maritime Safety Authority (No2) [1998] FCA 975 Hume Coal Pty Ltd v Alexander [2012] NSWLEC 267 Hume Coal Pty Ltd v Alexander (No 2) [2012] NSWLEC 278 Hume Coal Pty Ltd v Alexander (No 3) [2013] NSWLEC 58 John Williams Neighbourhood Group Inc v Minister for Planning [2011] NSWLEC 100; 183 LGERA 327 Minister for Planning v Walker (No 2) [2008] NSWCA 334 Noone v Mericka (No 2) [2012] VSC 2 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Westpoint Finance Pty Ltd v Chocolate Factory Apartments Ltd [2002] NSWCA 287
Category:	Costs
Parties:	Hume Coal Pty Limited (Plaintiff) Ross Alexander (First Defendant) Margaret Anne Alexander (Second Defendant)
Representation:	Mr R C Beasley SC (Plaintiff) Mr S Chapple, barrister (Defendants) Minter Ellison (Plaintiff) Environmental Defender's Office (Defendants)
File Number(s):	81128 of 2012