Masterbuilt Pty Limited v Wingecarribee Shire Council

[2004] NSWLEC 767

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:      Masterbuilt Pty Limited v Wingecarribee Shire Council [2004]  NSWLEC 767

PARTIES:
Masterbuilt Pty Ltd (Appl)
Wingecarribee Shire Council (Resp)

CASE NUMBER:      11572 of       2003

CATCH WORDS:     Costs

LEGISLATION CITED:

CORAM:       McClellan CJ

DATES OF HEARING:        1 December 2004

EX TEMPORE DATE:        01/12/2004

LEGAL REPRESENTATIVES

D Baird (Appl)
Maddocks (Sol - appl)

D Wilson (Resp)
B Bilinsky & Co (Sol - resp)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

WEDNESDAY 1 DECEMBER 2004

11572/03MASTERBUILT PTY LTD v WINGECARRIBEE SHIRE COUNCIL

JUDGMENT

1. HIS HONOUR:  This matter came before me this morning on the Council’s application for an order for costs in relation to these class one proceedings.  That application was founded upon the fact that the matter had been fixed for hearing when an application was made to vacate the hearing date because of the negotiations which the applicant was having with the Council.  It was expected that those negotiations would lead to a resolution of the matter without the necessity for a decision by the Court.

2. The application for adjournment was granted but the matter was fixed for a further hearing some weeks later.  The applicant continued negotiations with the Council and ultimately sought again to have the hearing date vacated.  That application was not immediately granted and it was necessary for the parties to appear before Justice Talbot on at least two occasions.

3. Ultimately, the hearing date was vacated shortly before the matter was due to commence and thereafter the Council resolved to approve the application.

4. In these circumstances, the Council submits that it would be fair and reasonable for it to be compensated for the costs which were unnecessarily incurred by having the matter fixed for hearing on two occasions and the hearing date was subsequently vacated.

5. In my opinion, the Council is not entitled to any order in relation to the first occasion upon which the proceedings were vacated.  If that application had not been made or acceded to, it would have been necessary for the Council to defend its decision in a contested hearing.  That is a cost which a council will usually bear in the ordinary course of class one proceedings. 

6. However, when the matter was fixed on the second occasion, this was done at an early date in order to assist the applicant.  In my opinion, because that second date was ultimately vacated again at the request of the applicant, it is fair and reasonable that the Council be compensated at least in a modest amount for the costs which it incurred, but which have ultimately been wasted.  Those costs were incurred for the benefit of the applicant and an order is appropriate.  It is also appropriate in the circumstances that the Council have an order for costs in relation to today’s motion. 

7. I have discussed with both parties the appropriate quantum of any order.  Following those discussions it has been agreed that an order in the sum of $12,500 would be appropriate compensation for the Council in the circumstances. 

8. Accordingly, I note that the parties have agreed in that sum and will make an order that in relation to the Council’s costs of the class one proceedings including the costs of today’s motion.

9. I order the applicant to pay the Council’s costs determined in the sum of $12,500. 

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