Land and Environment Court
of New South Wales
CITATION: Molnar v Waverley Council [2005] NSWLEC 308
PARTIES: Robert Balazs Molnar (Appl)
Waverley Council (Res)FILE NUMBER(S): 11481 of 2004
CORAM: McClellan CJ
KEY ISSUES: Costs :- Fair and reasonable costs
Application for concurrence by Chief Judge of a Commissioner's costs determination
DATE OF JUDGMENT:
06/09/2005LEGAL REPRESENTATIVES:
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMcCLELLAN J
THURSDAY 9 JUNE 2005
JUDGMENT11481/04 MOLNAR v WAVERLEY COUNCIL
1 McCLELLAN J: In this matter Commissioner Murrell heard and determined the appeal. The appeal was upheld in part and an amended plan has been approved.
2 Commissioner Murrell heard submissions from the applicant seeking that a special costs order be made. The Commissioner determined that she, subject to my concurrence, would order the council to pay two-thirds of the costs of the court appointed expert. Unless a special order is made the rules provide that the parties are to share equally the costs of that expert.
3 The basis upon which the Commissioner reached her decision was that it would be fair and reasonable to make a special order in circumstances where council had initially decided there should be no expert evidence but subsequently changed its position and asked for a court appointed expert.
4 To my mind, these circumstances do not justify a special order. There will be many cases where a party may depend on an initial position in relation to expert evidence and in light of further instructions, change that position and consent to the appointment of a court expert. Where, as here, controversy exists in relation to the proper form of development, the assistance to be obtained by having a court expert must be encouraged. Accordingly, an order which alters the usual basis for costs can only be justified in circumstances where the contribution obtained by the appointment of a court expert was effectively of no utility. I do not understand that to be the present case. Accordingly, I do not concur in the making of a special order for costs.
5 The order of the court will be each party to pay its own costs.
- AGLC
- Molnar v Waverley Council [2005] NSWLEC 308
- Case
- [2005] NSWLEC 308
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether it was fair and reasonable to order Waverley Council to pay two-thirds of the costs of the court-appointed expert, as recommended by Commissioner Murrell. The Commissioner had made this recommendation based on the council's initial refusal to accept expert evidence, which was later overturned when they consented to the appointment of a court expert. The court needed to determine if this change in position justified a departure from the usual cost-sharing arrangement.
McClellan J concluded that the circumstances did not warrant a special order for costs. The judge reasoned that it was common for parties to change their stance on expert evidence and that the appointment of a court expert should be encouraged, particularly in cases where there is controversy over the development's proper form. The judge held that a special order could only be justified if the expert's contribution was essentially useless, which was not the case here. Therefore, McClellan J did not concur with the Commissioner's recommendation and ruled that each party should bear its own costs.
In summary, the court dismissed the application for a special order regarding costs and upheld the usual cost-sharing arrangement between the parties.
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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