Maxwell v Warringah Council (No 3)

[2004] NSWLEC 638

Land and Environment Court

of New South Wales

CITATION:

Maxwell and anor v Warringah Council and anor (No 3) [2004] NSWLEC 638

PARTIES:

APPLICANTS
S Maxwell
and
M Corbett

FIRST RESPONDENT
Warringah Council

SECOND RESPONDENT
Duffys Forest Residents Association
.

FILE NUMBER(S):

11195 of 2003

CORAM:

Moore C

KEY ISSUES:

Costs :-
Substantial late amendment to application
.

LEGISLATION CITED:

CASES CITED:

Maxwell and anor v Warringah Council and anor (No 2) [2004] NSWLEC 522;
.

DATES OF HEARING:

2 November 2004

EX TEMPORE
JUDGMENT DATE :

11/02/2004

LEGAL REPRESENTATIVES:

APPLICANTS
Mr J Cole, solicitor
Abbott Tout

FIRST RESPONDENT
Mr K Webber, solicitor
Wilshire Webb

SECOND RESPONDENT
Ms S Duggan, barrister
INSTRUCTED BY
Smallwoods Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

2 November

03/11195 Maxwell & Corbett v Warringah Shire Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: The matter that comes before me today is an application to amend the amended application currently before the Court. It is proposed that the amendments deal with three elements. They are:

• To incorporate the stormwater swales in the additional statement of evidence of Dr Robert Patterson and its attached Plan 1 – Drainage Swales;

• To adjust the inner and outer asset protection zones and fire trails in an eastern direction and to adjust the building envelopes and associated driveways on Lots 1 and 2 as shown on plan reference 13087/15 dated 6 October 2003; and

• To incorporate the Construction Environmental Management Plan of GIS Environmental Consultants of October 2004 and the Environmental Management Plan of GIS Environmental Consultants of October 2004.

2 When the matter was dealt with by me by decision dated 17 September [Maxwell and anor v Warringah Council and anor (No 2) [2004] NSWLEC 522], I directed that further material that would enable me to have an understanding of the amendments was to be provided by the applicants for my assistance.

3 In addition, each of the respondents was to provide an indication of their costs that would be rendered irrelevant if the amendments were to be permitted, together with an estimate of the future costs that would be incurred if the amendment were to proceed and a summary of their costs wasted which are to be paid as agreed or assessed by the applicants pursuant to consent orders made on 9 September.

4 The material has been provided and I have considered all of it.

5 I am satisfied that the amendments, particularly the first and third of them, constitute amendments of substance. Whether or not they are so substantial as to alter the nature of the application to one that is totally and fundamentally different from that which was originally before the Court is a matter which I do not propose to deal with on this application to amend. I therefore propose to permit the amandments.

6 The second matter that has been dealt with by me this morning, which necessarily follows on the applications of the respondents, is how should I address the costs issues that are normally associated with an applicant being granted an indulgence of leave to amend, particularly, as is the case here, to incorporate amendments of a substantial nature and virtually at the death of the proceedings concluding on the original amended application.

7 The first and second respondents press that I should make an order for costs, seeking the Chief Judge’s concurrence to my making that order, they seeking that the order deal with three elements:

• The payment of their costs that will be rendered irrelevant by virtue of the amendment to be paid, effectively, on an indemnity basis;
• Some form of order for costs which requires a guarantee of payment of their future costs to be incurred;
• The respondents’ costs of today’s proceedings.

8 The applicants indicated, through Mr Cole, that they are prepared to give an undertaking to pay the respondents' costs which will be thrown away by reason of granting the leave to amend in terms of the three elements I have outlined – but only on an as agreed or assessed basis and not on an actual basis. As a consequence, I need only address the issue of the basis upon which such costs should be paid.

9 The applicants also say that they ought not be exposed to making an order for costs as to the costs of future work to be undertaken on the amended application.

10 Mr Cole has no instructions with respect to the application for costs for today.

11 I propose to proceed to determine all three issues immediately.

12 I turn to the first matter. The respondents have provided details of the work which they say has been rendered irrelevant by the late and substantial nature of the amendments I have permitted.

13 I do not propose to set out the detail of those calculations but they are on the Court’s record and were available to the applicants. I note, however, that the amounts for the first and second respondents are $11,070.00 and $22,700.92 respectively.

14 I am satisfied that:

• as a consequence of the very late and very substantial nature of the amendments rendering irrelevant a good deal of the expert material prepared (and Court time in hearing evidence given concerning it):
• the applicants’ position being put on several earlier occasions that the amendments concerning the management plans would not be required;
• the amendments concerning the asset protection zones, fire trails and building envelopes arising solely as a consequence of inaccuracies in the mapping of the location of a particular vegetation type – such inaccuracies having been known to the applicants’ advisors at a significantly earlier time; and
• the fact that the amendments concerning significant earthworks for the drainage swales arose out of concessions by the applicants’ own expert witness during concurrent oral evidence and thus should have been known to the applicants at a much earlier stage in proceedings

it is appropriate that the wasted costs which are to be paid to the two respondents as a consequence of the substantial amendments ought to be on an indemnity costs basis.

15 Although there is nothing obviously inappropriate in the lists of activities provided by each respondent as to these costs, the applicants should, nonetheless, have the opportunity to challenge the inclusion of the various items within the costs. I propose that the order enable them to have assessed the validity of any of the elements that comprise such bill of costs.

16 I therefore propose, with respect to this element, to seek the concurrence of the Chief Judge to the making of an order that the applicants are to pay the respondent’s actual costs which will be thrown away by reason of granting of leave to amend the application in terms of the three elements I have earlier outlined but with the inclusion of individual elements as components of such costs to be as agreed or assessed.

17 The form of the orders concerning this that I will propose to the Chief Judge will be:

1. The applicants are to pay the respondents’ actual costs which will be thrown away by reason of granting of leave to amend the application:

• To incorporate the stormwater swales in the additional statement of evidence of Dr Robert Patterson and its attached Plan 1 – Drainage Swales;
• To adjust the inner and outer asset protection zones and fire trails in an eastern direction and to adjust the building envelopes and associated driveways on Lots 1 and 2 as shown on plan reference 13087/15 dated 6 October 2003; and
• To incorporate the Construction Environmental Management Plan of GIS Environmental Consultants of October 2004 and the Environmental Management Plan of GIS Environmental Consultants of October 2004.

2. The components of the costs in (1) to be as agreed or assessed.

18 With respect to the second of the elements, that is the future costs which will be incurred as a consequence of the two respondents needing to undertake significant additional work as a consequence of the amendments, I do not consider it appropriate that I should make any order for costs of that nature or seek the concurrence of the Chief Judge to the making of any such order.

19 To do so would constitute, in my view, granting an application for security for costs. Although I do not have any information as to the means or assets of the respondents, nothing has been put to me which would justify such an approach and, therefore, it is not appropriate, at least at this stage, for me to seek concurrence to such an order.

20 It is, however, obviously appropriate for me to reserve the question of past costs incurred which are not the subject of the orders proposed to follow from this decision or which were encompassed by the September costs order – that is past costs which will remain for work alive in the proceedings on the amended application. I really do not need to indicate to all of the parties that their normal rights to make future applications for costs are in no way compromised by the matters with which I am dealing this morning.

21 Finally, I turn to the question of the application for costs for today and associated preparation costs.

22 I am satisfied that this hearing would not have occurred had there not been the necessity for the applicant to make significant amendments to the application as a consequence of what I described in my September decision as the manifest deficiencies of its already significantly amended application as it existed prior to these amendments being permitted.

23 I am, therefore, satisfied that it is fair and reasonable that the costs of and associated with today’s hearing should also be met by the applicants. However I consider, as they are costs in the normal course of litigation and no extra circumstances have been demonstrated to depart from the normal course, that they should be on an as agreed or assessed basis.

24 I therefore propose to seek the concurrence of the Chief Judge to the making of a further order that the applicants are to pay the costs of and associated with today’s hearing, such costs to be on an as agreed or assessed basis.

25 I then turn to where the proceeding should go from here. I direct that the applicant is to file and serve a properly scaled 1:1,500 version of figure 1 annexed to the additional statement of Dr Robert Patterson, being a document filed on 7 October 2004, and to do so by Friday 19 November.

26 I direct that the respondents are to file and serve any additional statements of issues arising out of the amended application by 4 February 2005.

27 I refer the matter to callover before the Registrar on Tuesday 8 February 2005.

28 These reasons, together with the proposed orders, will be provided to the parties after which they will have a period of fourteen days, pursuant to the Practice Direction concerning costs, to make submissions to the Chief Judge with respect to the orders to which I propose to seek his concurrence (together with their right to seek to be heard by him on those matters if they wish).

29 I note and will inform the Registrar of the fact that the parties have agreed that the matter is not to be set down for further hearing until after the assessment process for costs pursuant to the two orders to which I propose to seek the Chief Judge’s concurrence, are finalised, providing of course the Chief Judge permits me to make those orders pursuant to s 69(8) of the Act.

30 If the Chief Judge does not do so, obviously we will need to reconvene to deal with the matter further in light of his decision.

Tim Moore
Commissioner of the Court