Molnar v Waverley Council

[2005] NSWLEC 308

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:	06/09/2005
LEGAL REPRESENTATIVES:

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

THURSDAY 9 JUNE 2005

11481/04 MOLNAR v WAVERLEY COUNCIL

JUDGMENT

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.

**********