Kosciusko Alpine Club Limited v National Parks and Wildlife Service

[1988] NSWLEC 23

Land and Environment Court

of New South Wales

CITATION:

Kosciusko Alpine Club Limited v National Parks and Wildlife Service & Anor [1988] NSWLEC 23

PARTIES:

APPLICANT
Kosciusko Alpine Club Limited

FIRST RESPONDENT
National Parks and Wildlife Service

SECOND RESPONDENT
Corroboree Lodge Pty Ltd

FILE NUMBER(S):

40054 of 1988

CORAM:

Bignold J - Hemmings J

KEY ISSUES:

:-

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

22/03/88, 21/06/88

DATE OF JUDGMENT:

10/05/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: These are the reasons for my orders pronounced last Thursday.

The 2nd Respondent's Notice of Motion seeks an order setting aside my Judgment on 21st June, 1988 refusing the 2nd Respondent's application for costs in respect of proceedings that I had determined on 1st June, 1988 which resulted in an order that the 2nd Respondent be partially released from an undertaking that it had given the Court on 22nd April, 1988 and ordering the Applicant to pay the 2nd Respondent's costs of those proceedings.

The sole basis for the order sought in the 2nd Respondent's Notice of Motion is the fact that the transcript of the proceedings before His Honour Hemmings J. on 22nd April, 1988 (which was not available when I delivered judgment on 21st June, 1988) indicated that liberty to apply had been reserved by His Honour at the request of Counsel for the 2nd Respondent specifically to deal with the question of what was to become of the partially erected structures (the completion of which was effectively enjoined by the 2nd Respondent's aforesaid undertaking given to the Court on 22nd April, 1988).

This fact was clearly at odds with the factual understanding expressed in the following passages at p.3 of my Judgment on 21st June, 1988:-

"In the course of argument I again raised with the parties the question of whether liberty to apply had been reserved specifically to deal with the question subsequently raised by the Notice of Motion. It appeared to me that if this was the case the 2nd Respondent's claim to costs would be strengthened. Conversely if it were not the case it appeared to me that its case would be weakened and it would be appropriate to consider the present Notice of Motion more in the nature of a party bound by its undertaking seeking an indulgence from the Court.

Since there was no transcript available of the proceedings before Hemmings J. both parties agreed that I should reserve my decision on the application for costs and consult with Hemmings J. to establish whether His Honour had reserved liberty to apply specifically to deal with the question of the fate of uncompleted structure, particularly with some expectation that the parties could themselves reasonably resolve the matter in a manner similar to that sought by the 2nd Respondent in its Notice of Motion.

Having so consulted His Honour I am informed that liberty to apply had not been reserved for that particular purpose or with that particular expectation."

The question that arises on the present Motion is whether on the true facts (now established by the availability of the transcript of the proceedings before Hemmings J. on 22nd April, 1988) my decision refusing the 2nd Respondent's application for costs in respect of proceedings in which it was successful, should be set aside and costs be awarded in favour of the 2nd Respondent.

Although obviously, as I stated in the passage extracted from my earlier judgment, the 2nd Respondent's claim for costs is strengthened by the revelation in the transcript as to the circumstances whereby Hemmings J. reserved liberty to apply, I remain of the opinion that this is not a case for making an order for costs in favour of the 2nd Respondent, principally for one of the reasons given in my Judgment of 21st June, 1988 ie the undertaking given to the Court did not make (though it could have made) appropriate provision in relation to the matter ultimately dealt with in the subsequent Notice of Motion seeking partial release of the undertaking. Responsibility for that state of affairs, even if a shared responsibility, principally lay at the feet of the 2nd Respondent, which volunteered the undertaking.

In so concluding, I have been content to assume, contrary to the Applicant's argument that the Court lacked jurisdiction to set aside its previous order, that if justice required the earlier order to be set aside, I would have had the power to so do: cf the notes to SCR20.10 in Ritchie's Supreme Court Practice.

Accordingly the Notice of Motion is dismissed.

I make no order as to costs in respect of the Notice of Motion on the basis that the costs which I would otherwise have granted in favour of the Applicant on the hearing may be fairly and reasonably set off against the 2nd Respondent's costs (previously reserved) thrown away by the Applicant's belated application for adjournment when the 2nd Respondent's Notice of Motion first came before me.