Norville Nominees Pty Ltd v Strathbogie Shire Council & Ors

[2008] VSC 347

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4125 of 2008

NORVILLE NOMINEES PTY LTD	Appellant
v
STRATHBOGIE SHIRE COUNCIL AND OTHERS	Respondents

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 SEPTEMBER 2008
DATE OF JUDGMENT:	4 SEPTEMBER 2008
CASE MAY BE CITED AS:	NORVILLE NOMINEES PTY LTD v STRATHBOGIE SHIRE COUNCIL & ORS
MEDIUM NEUTRAL CITATION:	[2008] VSC 347

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Costs – Indemnity Certificate – s.4 Appeal Costs Act1998 

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A. Southall QC with Mr D. O’Brien	Nevett Ford
For the Respondents	Mr N. Tweedie	Maddocks Lawyers

HIS HONOUR: 

1. In this matter, the appellant, having been partially but materially successful in obtaining the relief it claimed from this Court, now seeks an order with respect to its costs. The respondents seek indemnity certificates pursuant to s.4 of the Appeal Costs Act1998, with respect to their costs in the first instance, and also with respect to any costs that may be ordered against them. 

1. In my view, the first respondent, Strathbogie Shire Council is entitled to an indemnity certificate:

(A)      The error in respect of which I have found the appeal to this Court was justified was not of the council's making, but as I have found, the Tribunal effectively went off on a frolic of its own. 

(B)      It is apparent that the application was regarded by the Tribunal as significantly defective irrespective of the contentious perceived defect in relation to which I have held there was a denial of natural justice. 

(C)      It is apparent that upon the further hearing of the matter, the appellant will seek to materially amend its permit application.

(D)      The appellant has failed on significant issues raised by it both on the leave application and upon the hearing of the appeal. 

1. In my view, the other respondents for whom Mr Josephs appears, as I understand it, are also entitled to an indemnity certificate.  In addition to the above matters, their participation in the appeal process has been very limited and entirely reasonable.  Further, having regard to these last considerations and in particular the reasonable limitation of costs in which those objectors have engaged, it would be quite inappropriate, in my view, for any order of costs to be made against them in this proceeding. 

1. If an order for costs is to be made in favour of the appellant, it should be limited to an order against the Strathbogie Shire Council which was the effective contradictor in the proceeding. 

1. It follows that I am satisfied firstly that the respondents should be granted indemnity certificates, and secondly, that no order should be made for costs in favour of the appellants save as against Strathbogie Shire Council. 

1. The question of the appropriate order as against the council is attended by a further complication.  For the same reasons I have stated in relation to the giving of an indemnity certificate, I am also of the view that no order for costs should be made in favour of the appellant against the council, other than such an order as could be covered by an indemnity certificate.  Having regard to the complexity and extent of material prepared in the matter, the duration of the leave application and the appeal hearings, it is apparent that any amount which would remain payable pursuant to an indemnity certificate after the payment of the respondent's own costs and the costs of assessment of costs would be very limited. 

1. Mr Tweedie is instructed that the Council's costs already exceed $40,000 and the limit imposed in respect of liability pursuant to a certificate pursuant to s.5(2) of the Act is $50,000. 

1. In the circumstances, I propose to order with respect to costs that the respondents each be granted an indemnity certificate, and I further order that the first respondent, the Strathbogie Shire Council, advise the appellant in writing of the final sum recovered by it pursuant to the certificate granted to it, within seven days of such recovery. 

1. I reserve liberty to the appellant to apply for further order as to costs as against the first respondent, the Strathbogie Shire Council only, following the receipt of such written advice or the expiration of six months after the final order of the Victorian Civil and Administrative Tribunal in the review proceeding remitted to it by me, whichever date first arises.  I will further observe that unless there is some material sum available for recourse after the indemnification of the council, I would regard such an application as pointless and it would carry the risk of further costs if it were pursued unreasonably. 

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