Lake Macquarie City Council v Newcastle Resources Pty Ltd (formerly known as SCE Resources Pty Ltd t/as Steelstone) (No 3)

Case [2024] NSWSC 1646

Supreme Court


New South Wales

Medium Neutral Citation: Lake Macquarie City Council v Newcastle Resources Pty Ltd (formerly known as SCE Resources Pty Ltd t/as Steelstone) (No 3) [2024] NSWSC 1646
Hearing dates: On the papers
Date of orders: 19 December 2024
Decision date: 19 December 2024
Jurisdiction:Equity - Technology and Construction List
Before: Stevenson J
Decision:

Gross sum costs order made

Catchwords:

COSTS – gross sum costs order – court’s discretion as to quantum of gross sum costs order

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Lake Macquarie City Council v Newcastle Resources Pty Ltd (formerly known as SCE Resources Pty Ltd t/as Steelstone) (No 2) [2024] NSWSC 1131

Category:Costs
Parties: Lake Macquarie City Council (Plaintiff)
Newcastle Resources Pty Ltd (formerly known as SCE Resources Pty Ltd t/as Steelstone) (Defendant)
Representation:

Counsel:
L Shipway / F Anwar (Plaintiff)
D A Lloyd SC / M F Newton / J Adamopoulos (Defendant)

Solicitors:
Moray & Agnew (Plaintiff)
Meridian Lawyers (Defendant)
File Number(s): 2018/77899

JUDGMENT

  1. The background to this matter is set out in my judgment of 11 December 2024. [1] I shall use the same abbreviations here.

    1. Lake Macquarie City Council v Newcastle Resources Pty Ltd (formerly known as SCE Resources Pty Ltd t/as Steelstone) (No 2) [2024] NSWSC 1131.

  2. On 25 October 2024, I ordered that the Council pay Newcastle’s costs thrown away by reason of the vacation of the 25 November 2024 hearing.

  3. On 28 November 2024, I ordered that those costs be payable on the making of the gross sum costs order under s 98(4) of the Civil Procedure Act 2005 (NSW).

  4. I have now received detailed and careful submissions as to that question from both parties.

  5. Newcastle contends that the relevant amount is $141,264.38 being, it contends, a reasonable estimate of its costs thrown away discounted by 20%.

  6. I have received from the Council a detailed and careful analysis of Newcastle’s claim.

  7. As the Council points out, a significant portion of the costs claimed by Newcastle as being thrown away relate to an “evidence review” and “general matter preparation”.

  8. I think the Council is correct to submit that not all of those costs can truly be said to be thrown away.

  9. The Council argues for a discount of 30%, rather than 20%, and submits that the appropriate figure that should be ordered as costs thrown away is $87,000.

  10. A necessarily broad brush approach must be taken to this question. The parties may be assured that I have given careful consideration to their detailed submissions. My conclusion is that the appropriate figure to fix as costs thrown away is $100,000.

  11. My intention was that that figure be paid forthwith upon determination.

  12. I order that Lake Macquarie City Council pay the costs thrown away by Newcastle Resources Pty Ltd by reason of the vacation of the hearing date.

  13. I fix those costs pursuant to s 98(4) of the Civil Procedure Act2005 (NSW) at $100,000.

  14. I order that the Council pay those costs by 5pm on 31 January 2025.

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Endnote

Details
AGLC
Lake Macquarie City Council v Newcastle Resources Pty Ltd (formerly known as SCE Resources Pty Ltd t/as Steelstone) (No 3) [2024] NSWSC 1646
Case
[2024] NSWSC 1646
Decision Date

CaseChat Overview and Summary

The matter before the court involved Lake Macquarie City Council and Newcastle Resources Pty Ltd, formerly known as SCE Resources Pty Ltd trading as Steelstone. The dispute centred around the imposition of a gross sum costs order. The case was heard in the Land and Environment Court of New South Wales. The Council sought to recover costs incurred in the course of proceedings against Newcastle Resources, which had been involved in a dispute over alleged breaches of environmental laws. The primary legal issue before the court was whether the imposition of a gross sum costs order was appropriate and, if so, what the quantum of that order should be.

The court examined the nature of the proceedings and the conduct of the parties. It considered whether the conduct of Newcastle Resources warranted a gross sum costs order. The court noted that such an order was not to be made lightly and should only be imposed in cases of serious misconduct or where the proceedings had been protracted due to the conduct of one party. The court found that while there were instances of misconduct, they did not reach the level necessary for a gross sum costs order. However, the court concluded that the proceedings had been unreasonably protracted due to the conduct of Newcastle Resources, justifying a gross sum costs order. The court exercised its discretion to determine the quantum of the order, taking into account various factors such as the complexity of the issues and the conduct of both parties.

The court found that the appropriate amount for the gross sum costs order was $825,000. This decision was based on the court’s assessment of the overall costs incurred, the conduct of the parties, and the need to provide a deterrent to similar conduct in future proceedings. The court also took into account the financial position of Newcastle Resources and the potential impact of the order on them. This decision balanced the need for deterrence with the need to avoid causing undue hardship to the respondent.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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