Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council

[2009] NSWCA 318

New South Wales

Court of Appeal

CITATION:

MURLAN CONSULTING PTY LTD v KU-RING-GAI MUNICIPAL COUNCIL (NO 2) [2009] NSWCA 318
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):

On the papers

 
JUDGMENT DATE: 

6 October 2009

JUDGMENT OF:

Basten JA at 1; Macfarlan JA at 1; Sackville AJA at 1

DECISION:

(1) Set aside the orders made by Pain J on 4 December 2008.

(2) Remit the reamended notice of motion filed on 18 November 2008 for determination by the Land and Environment Court.

(3) Dismiss the appeal from the orders as to costs made on 25 February 2009. (4) Order that the first respondent pay the appellant’s costs in this Court.

CATCHWORDS:	COSTS – initial order for costs of motion in court below – additional order for costs thrown away – appeal from additional order dismissed – substantive issue remitted for determination in court below – whether initial costs order to be set aside and costs to be determined on hearing of remitter - JUDGMENT – application to vary order – orders not entered – inconsistency between reasons and orders - JUDGMENT – application to vary order – typographical error – correction under slip rule
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 (NSW), r 36.12
CATEGORY:	Consequential orders
CASES CITED:	Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300
PARTIES:	Murlan Consulting Pty Ltd – Appellant Ku-ring-gai Municipal Council – First Respondent John Williams Neighbourhood Group – Second Respondent
FILE NUMBER(S):	CA 40127/09
COUNSEL:	M A Pembroke SC/R P Lancaster/H Bennett – Appellant J E Griffiths SC/M N Allars – First Respondent
SOLICITORS:	Mallesons Stephen Jaques – Appellant Deacons – First Respondent Blake Dawson – Second Respondent

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 11193/06
LOWER COURT JUDICIAL OFFICER:	Pain J
LOWER COURT DATE OF DECISION:	4 December 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2008] NSWLEC 318

CA 40127/09
LEC 11193/06

BASTEN JA
MACFARLAN JA
SACKVILLE AJA

6 October 2009

MURLAN CONSULTING PTY LTD v KU-RING-GAI MUNICIPAL COUNCIL (NO 2)

Judgment

: The principal judgment in this matter was handed down on 24 September 2009: Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300. The orders identified in the judgment were as follows:

(1) Set aside the orders made by Pain J on 29 October 2007.

(2) Remit the reamended notice of motion filed on 18 November 2008 for determination by the Land and Environment Court.

(3) Dismiss the appeal from the orders as to costs made on 15 February 2009.

(4) Order that the first respondent pay the appellant’s costs in this Court.

2 Before the orders were entered, the parties foreshadowed an issue as to the correctness of the orders as set out above. As a result of that notification, the Court has taken steps to ensure that orders not be entered.

3 Three variations are proposed in respect of the orders. Two are to correct dates and may be made by consent. Thus, in order (1), the judgment of Pain J dismissing the reamended notice of motion dated 18 November 2008 was made on 4 December 2008 (not 29 October 2007). The date should be amended accordingly. (The error arose partly from the appellant’s notice of appeal, which sought an order setting aside the earlier judgment.)

4 In order (3) there was a typographical error in the date of the costs order made in the Court below, which should have read “25 February 2009” (not 15 February 2009).

5 The letter from the appellant’s solicitors dated 25 September 2009 noted what was, in effect, an application by the first respondent (the Council) for an amendment to order (1). The letter proposed that because of “the parties’ disagreement with respect to the correct interpretation to be accorded to order 1” the matter should be relisted before a judge of the Court. The Council’s application for a variation of order (1) should be refused. There is no relevant uncertainty as to the effect of the orders made by this Court, subject to the corrections noted above and subject to a correction to the orders in the Land and Environment Court apparently sought by the appellant. There is no call to provide any further hearing in this Court.

6 In the Land and Environment Court, two sets of costs orders were made. On 4 December 2008, the Court made the following orders:

1. The Applicant’s Re-Amended Notice of Motion dated 18 November 2008 is dismissed.
2. The Applicant is to pay the First Respondent’s costs of the Motion as agreed or assessed. Costs as to other matters relating to Re-Amended Notice of Notion specifically the ground of appeal concerning Dr Smith and the costs of the Second Respondent reserved.

7 The Land and Environment Court then gave leave for motions in relation to costs. On 11 December 2008 the Council filed a notice of motion seeking the following orders:

1 That the Applicant pay the First Respondent’s costs thrown away as a result of the Applicant’s Amended Notice of Motion and Re-Amended Notice of Motion.
2. That the Applicant pay the First Respondent’s costs of this Motion.

8 On 25 February 2009 the orders sought were made by the Land and Environment Court, with minor changes of form and one omission. The first order, relating to costs “thrown away” omitted the word “Amended” before “Notice of Motion”. According to the letter from the solicitors for the appellant, this was an error on their part, in providing a minute of the orders for sealing under Uniform Civil Procedure Rules 2005 (NSW), r 36.12. They indicated an intention to have the omission rectified in the Land and Environment Court. For present purposes, the error is immaterial, because the order was limited to the “costs thrown away” and was clearly intended to apply regardless of the outcome of the substantive application. The second order made on 25 February 2009 merely related to the costs of the application for costs.

9 In its notice of appeal, the appellant sought to challenge the costs orders made on 25 February 2009. For reasons given in the principal judgment at [73]-[75], the orders being limited to “costs thrown away” and the costs of the costs application, there was no basis for interference with the order and the appeal was dismissed. That conclusion was reflected in order (3), as set out in the principal judgment.

10 There remained a question as to the costs in the Land and Environment Court, properly incurred in the consideration of the appellant’s motion, not being costs thrown away by its failure to seek appropriate relief, without amendment and re-amendment.

11 This Court’s understanding of the orders made on 4 December 2008 was that, the appellant’s application for relief being refused, the reamended notice of motion was dismissed and the appellant was ordered to pay the Council’s costs of that motion. The orders made in this Court on 24 September 2009 set aside the order dismissing the appellant’s application for relief and the consequential order as to costs. As explained in the principal judgment, the substantive issue having been remitted to the Land and Environment Court, the costs of the appellant’s application (other than the “costs thrown away”) will remain to be determined by the Land and Environment Court on the hearing of the remitter. The attempt by the Council to construct an inconsistency between the reasons and the orders is rejected.

12 It is convenient to set out the amended orders in full:

(1) Set aside the orders made by Pain J on 4 December 2008.

(2) Remit the reamended notice of motion filed on 18 November 2008 for determination by the Land and Environment Court.

(3) Dismiss the appeal from the orders as to costs made on 25 February 2009.

(4) Order that the first respondent pay the appellant’s costs in this Court.

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07/10/2009 - Noting No 2 judgment - Paragraph(s) Coversheet