Meharg v Newcastle City Council

[2000] NSWLEC 239

Land and Environment Court

of New South Wales

CITATION:	Meharg v Newcastle City Council & Ors [2000] NSWLEC 239
PARTIES:	APPLICANT Phillip Meharg FIRST RESPONDENT Newcastle City Council SECOND RESPONDENTS Heath Andrew Tynan, Jason James Tynan and Mike Justin Tynan
FILE NUMBER(S):	40242 of 1996
CORAM:	Sheahan J
KEY ISSUES:	Costs :- Class 4 - party and party costs - apportionment among respondents
LEGISLATION CITED:
CASES CITED:	Latoudis v Casey (1990) 170 CLR 534; Oshlack v Richmond River Council (1998) 193 CLR 72
DATES OF HEARING:	07/04/1998
EX TEMPORE JUDGMENT DATE :	04/07/1998
LEGAL REPRESENTATIVES:	APPLICANT Ms J Blackman (Barrister) Solicitors Cleaves Mallick Gibbs FIRST RESPONDENT Mr M Baird (Barrister) Solicitors Harris Wheeler SECOND RESPONDENT Mr G Newport (Barrister) Solicitors Emery Partners

JUDGMENT:

IN THE LAND AND Matter No: 40242 of 1996

ENVIRONMENT COURT Coram: Sheahan J

OF NEW SOUTH WALES 7 April 1998

PHILLIP MEHARG

Applicant

v

NEWCASTLE CITY COUNCIL

First Respondent

HEATH ANDREW TYNAN, JASON JAMES TYNAN

and MIKE JUSTIN TYNAN

Second Respondents

JUDGMENT

1. This matter was heard in the Court from 28 July to 1 August 1997 and was the subject of comprehensive written and oral submissions on the morning of 6 August 1997.

2. As will be apparent from the length of time it took for me to deliver my judgment on the merits, I found it a long, complex and difficult matter, both in hearing and in deliberation.

3. At p63 of my Judgment published on 13 February 1998 I made this comment regarding costs:

On the question of costs as the applicant has succeeded in obtaining from this Court the primary relief he sought, I believe that he is entitled to his costs and that they should be paid by the respondents in some proportions to be agreed. However as the question of costs was not the subject of full submissions by all parties the Court will leave it to the parties to negotiate the various cost issues in the light of this Judgment and if no agreement is reached the Court can be approached for a determination. Costs therefore will be formally reserved .

4. The orders I made on 13 February 1998 reflected those comments, and today, almost two months after the delivery of that Judgment, the parties have taken the opportunity to make submissions on what is the appropriate order, if any, for the Court to make on the question of costs.

5. In making those submissions, Counsel for both the Council and the Tynan family have pointed to various aspects of the Judgment, and indeed to various aspects of the hearing, and the issues that we canvassed during that hearing at such length.

6. I do not regard the chronology handed to me by Counsel for the applicant as other than an aide memoire in terms of assessing the passage of the litigation through to Judgment, and it is rightly pointed out by Counsel for the respondents that there could be argument about that document in the course of any assessment process that may follow any order made for costs.

7. However, I think it is fairly conceded by both Counsel appearing for the respondents that the applicant is entitled to an order for costs.

8. The issues for the Court today, therefore, are whether it should be an order for all costs incurred by the applicant, on a party and party basis, or whether it should be, for example, for two thirds of those costs.

9. I make no criticism of the applicant for raising the wide range of issues that came before the Court. The matter was complex, and at times I wondered the purpose of some of the material that was ventilated.

10. When I came to deal with the matter, and write my Judgment, I was satisfied that there were no unnecessary issues dealt with during the hearing, given the circumstances in which Mr Meharg found himself, with a large and developing building much closer to his boundary fence than he considered appropriate. In addition, he was confronted also by the failure of the Council to show much sympathy for his position, and, probably in good faith, the Council misinformed him as to his rights.

11. It is true, as Mr Baird says, that the principle in Latoudis v Casey (1990) 170 CLR 534, that costs are compensatory and not punitive, was recently affirmed in the comprehensive judgments given by the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72 regarding costs in proceedings before the Land and Environment Court.

12. In the circumstances, I see no reason to depart from the normal order that should be made in these matters, and that is that the respondents be ordered to pay the whole of the applicant's costs on a party and party basis.

13. On the subject of whether I should make an order for the costs to be shared in some proportions, given that in my Judgment I invited the parties to negotiate, and that no negotiation seems to have taken place regarding the matter of costs, I think that there is merit in Mr Baird's suggestion that the costs should be shared on a fifty per cent contributory basis, and I make an order in that direction. This is subject, of course, to the understanding that the respondents collectively are responsible for the whole of the costs, and it will be a matter, therefore, for negotiation among the parties as to their amount, and the method of their payment.

14. Accordingly, I order the respondents to pay the applicant's costs on a party and party basis and that that burden be shared fifty per cent each by the first respondent Council on the one hand and the various members of the Tynan family who were the second respondents on the other hand.

15. The costs of the matter will include the costs of finalising the outstanding issue left outstanding in my Judgment, namely, the question of costs, on the same basis.