Liverpool City Council v Australian Friction Industries Pty Ltd
[2006] NSWLEC 454
•22/06/2006
Land and Environment Court
of New South Wales
CITATION: Liverpool City Council v Australian Friction Industries Pty Ltd [2006] NSWLEC 454 PARTIES: APPLICANT:
Liverpool City CouncilFIRST RESPONDENT:
Australian Friction Industries Pty LtdSECOND RESPONDENT:
THIRD RESPONDENTS:
Australian Brake Lining Co Pty Ltd
Darko and Hui Ping NemanicFILE NUMBER(S): 40054 of 2006 CORAM: Biscoe J KEY ISSUES: Costs :- where there has been no hearing on the merits and one party effectively surrenders to the other – whether disentitling conduct. CASES CITED: Kiama Council v Grant [2006] NSWLEC 96 DATES OF HEARING: 22/06/2006 EX TEMPORE JUDGMENT DATE: 06/22/2006 LEGAL REPRESENTATIVES: APPLICANT:
Mr P Tomasetti, barrister
SOLICITORS
MaddocksRESPONDENTS:
Mr G Healey, solicitor
SOLICITORS
G H Healey & Co
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BISCOE J
22 June 2006
40054 of 2006
LIVERPOOL CITY COUNCIL v AUSTRALIAN FRICTION INDUSTRIES PTY LIMITED AND ORS.
EX TEMPOREJUDGMENT
HIS HONOUR
:
1 Shortly after this matter came on for hearing this morning the parties were able to resolve their substantive disputes by consent orders which gave the applicant the bulk of the substantive relief that it had sought in the proceedings, and were as proposed in a letter from the applicant’s solicitors to the respondents’ solicitors dated 20 June 2006. The orders made by consent were expressed to be without admissions and without prejudice as to the issue of costs.
2 I congratulate the parties on being able to settle their substantive differences.
3 Those consent orders having been made, evidence was tendered and submissions made to me on the residual issue of costs. The principles which apply in a case such as this have been recently expressed by Preston CJ in Kiama Council v Grant [2006] NSWLEC 96 at [80]:
(a) where one party effectively surrenders to the other party by:
The principles that emerge from these cases are that in a civil enforcement or judicial review case where there has been no hearing on the merits;
- (i) discontinuing without the consent of the other party; or
- (ii) giving undertakings to the Court or submitting to the Court making orders against the party substantially in the terms or to the effect claimed by the other party;
- the proper exercise of the costs discretion will ordinarily be to make the usual order as to costs, unless there is disentitling conduct on the part of the other party; and
(b) where some supervening event or settlement so removes or modifies the subject of the dispute that no issue remains except that of costs, the proper exercise of the costs discretion will ordinarily be to make no order as to costs unless:
(ii) even if both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried so that the party should obtain the costs of the action.(i) one of the parties has acted so unreasonably that the other party should obtain the costs of the action; or
4 It is the applicant’s submission that the present case falls within the first category to which his Honour referred in paragraph (a)(ii). The respondents also submit that it falls within that category. I agree. That is to say, it is a case where one party has effectively surrendered to the other party by submitting to the Court making orders against the party substantially to the effect claimed by the other party.
5 In those circumstances, the proper exercise of the costs discretion will ordinarily be to make the usual order as to costs: That is, the losing party pays the successful party’s costs, unless there is disentitling conduct on the part of the successful party.
6 It has been submitted on behalf of the respondents that the applicant council should have its costs up to 13 April 2006, but that no order for costs should be made thereafter. I have been referred to some cases involving planning appeals where a partial costs order was made or it was said that there is no general principle that a successful applicant should get its costs as of right. However, I regard the principles to which I should have regard in the present case as being those to which I have referred in Kiama Council v Grant.
7 Two matters were put to me in submissions on behalf of the respondents, as to disentitling conduct. The first matter was proportionality of costs. I do not see that as coming under the rubric of disentitling conduct. I was referred to a case of Skalkos, the reference to which I do not have, but which is referred to in a paper that I was handed, entitled “Latest Developments in Costing” by Michelle Castle, at p 12, in which Ipp JA in the NSW Court of Appeal is recorded as saying:
- In my opinion, in determining whether costs have been reasonably and properly incurred, it is relevant to consider whether those costs bear a reasonable relationship to the value and importance of the subject matter in issue.
8 That dictum was apparently uttered in the context of s 208G(f) of the Legal Profession Act 1987 (NSW). It seems to me that in the context of making costs orders in a case such as the present, such a principle of proportionality might have some relevance to the matter of assessment of costs. However, I am not concerned with the question of assessment of costs. What is more, it is not possible to say on the material before me that there is the disproportionality which the respondents apprehend.
9 The other matter that was put to me in submissions as disentitling conduct was that as from 13 April 2006, when the matter was before this Court for directions, the applicant should have done more to engage with the respondents to resolve the matter. It was said that on that occasion the respondents indicated that they would be prepared to do such matters that relate to the issues in the case as were directed by an expert that they had retained.
10 I am unable to agree that the conduct of the applicant thereafter constitutes disentitling conduct such as to deprive it of costs. It seems to me that the evidence which has been put forward in the case establishes at a prima facie level the causes of action pleaded in the Points of Claim. Furthermore, that material satisfies me that the chronology of the matter, which I was handed in writing by counsel for the applicant, is substantially correct.
11 Given the principle which applies in this case, namely the principle applicable to the first category identified by the Preston CJ in Kiama v Grant to which I have referred, it would seem unnecessary to go any further than to say that I am not satisfied that there has been, on the submissions which have been put to me, any disentitling conduct. If it were necessary to go any further I think it would be relevant to take into account, when specifically focusing on the period since 13 April as I have been invited to do, that there were repeated defaults by the respondents in complying with the Court’s directions as to the filing of Points of Defence and affidavits. Indeed it was not until earlier this month that Points of Defence were filed so that the applicant could know in a formal way, which is traditional in the court, what the case for the respondents was. If it were necessary to go beyond saying that I am not satisfied on the submissions made to me that there was no disentitling conduct, then those considerations I think would weigh in favour of making a costs order in favour of the applicant.
12 It was said by the legal representative for the respondents, during the course of the day, that if he or his firm had been retained at an earlier point in time, the parties may not be before the Court today. That may well be so, but I can say nothing more about it. Even if it were so, I do not think it is a factor which bears on the issue of costs.
13 Accordingly, I order that the respondents pay the applicant’s costs as agreed or assessed. As requested, I note that the respondents are jointly and severally liable for those costs.
14 The respondents seek liberty to apply because they have today made an application to the applicant council relating to the subject land. I believe that the proceedings before me are concluded. Therefore I do not propose to grant liberty to apply.
15 The exhibits may be returned.
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