Pancho Properties Pty Ltd v Wingecarribee Shire Council [No. 2]

[1999] NSWLEC 191

Land and Environment Court

of New South Wales

CITATION:

Pancho Properties Pty Ltd v Wingecarribee Shire Council [No. 2] [1999] NSWLEC 191

PARTIES

APPLICANT:
Pancho Properties Pty Ltd

RESPONDENT:
Wingecarribee Shire Council

NUMBER:

10071B of 1998

CORAM:

Talbot J

KEY ISSUES:

Orders; Practice & Procedure :-

Orders:- application for slip rule

Practice & Procedure:- not appropriate to review decision already made in the proceedings

LEGISLATION CITED:

DATES OF HEARING:

08/13/1999

DATE OF JUDGMENT DELIVERY:

08/19/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr I Hemmings (Barrister)

SOLCITIORS:
Solomon Garland Partners

RESPONDENT:
Mr P McEwen SC

SOLICITORS:
B Bilinsky & Co

JUDGMENT:
IN THE LAND AND Matter No. 10071 of 1998
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 19 August, 1999

Pancho Properties Pty Ltd
Applicant

v
Wingecarribee Shire Council

Respondent

REASONS FOR JUDGMENT


1. On 11 March 1999 the Court made an order that the respondent pay the applicant’s costs in relation to an appeal against the decision of Assessor Roseth (as he then was) pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act).

2. The Court was referred to s 6(1AA), s 6(2A)(a) and s 6(7) of the Suitor’s Fund Act 1951 as the relevant source of power.

3. An order was made that an indemnity certificate be granted to the respondent in respect of the appeal pursuant to s 6(1AA) of the Suitor’s Fund Act 1951. Although the Court was referred expressly to the provisions of s 6(2A)(a), no specific submissions were made in regard to the limit of $10,000 on the amount payable from the suitor’s fund.

4. On 11 March 1999 the applicant indicated that it was also seeking to recover the costs of the hearing before Assessor Roseth. The parties were not in a position to proceed with that application on 11 March and accordingly the costs of the hearing before Assessor Roseth were reserved.

5. By further Notice of Motion dated 31 March 1999 returnable on 13 April 1999 the applicant moved the Court for orders that the respondent pay the applicant’s costs of the proceedings before Assessor Roseth and that the certificate granted pursuant to the Suitor’s Fund Act on 11 March 1999 include the costs of the proceedings before Assessor Roseth. Argument and submissions proceeded before me on 30 April 1999 when Mr Hemmings appeared for the applicant and Mr McEwen SC for the respondent council.

6. At a preliminary stage of the hearing, prior to Mr McEwen’s formal appearance, Mr Hemmings indicated to the Court that argument would probably take about 10, 15 minutes because “ (i)t’s really just a question of whether you will extend the indemnity certificate under the Suitor’s Fund Act to cover the costs …” .

7. When Mr McEwen appeared the following exchange took place:-


HIS HONOUR: … it now appears that Mr Hemmings wants to extend the ambit of the Suitor’s Fund Certificate to cover the hearing before Roseth C.

McEWEN: Your Honour, the costs before him were wasted because of the wrong turning, with respect, the Commissioner took, so I couldn’t argue against, in fact I invite your Honour to extend that certificate if you feel minded to do so.

8. Recognising that the council had sought to uphold what the Assessor had done on the hearing of the s 56A appeal, Mr McEwen nevertheless submitted that his client should not also bear the penalty which he explained as follows:-

McEWEN: The penalty would be if your Honour were not minded to extend the Suitor’s Fund Certificate but nonetheless order we pay my learned friend’s clients costs at first instance.

9. Mr Hemmings then referred the Court to specific provisions of the Act and in particular s 6(1AA) and the definition of costs in s 2 as follows:-


“Costs” , when used in relation to an appeal in respect of which an indemnity certificate is granted, includes:

(a) the costs of the application for the indemnity certificate but, except as provided by paragraph (b) of this definition, does not include costs incurred in a court of first instance;
(b) where a new trial is ordered upon the appeal, the costs of the first trial.


10. No further argument took place.

11. I was persuaded that the costs incurred in the hearing before Assessor Roseth could be properly the subject of an indemnity certificate in the circumstances.

12. I made a further order that the respondent pay the applicant’s costs of the hearing before Assessor Roseth and that a certificate pursuant to s 6(1AA) of the Suitor’s Fund Act 1951 be granted to the respondent to include the costs of the hearing before Assessor Roseth and the costs of the Notice of Motion filed on 31 March 1999.

13. By a further Notice of Motion dated 4 June 1999 the respondent seeks a review of the orders for costs made on 11 March 1999 and 30 April 1999.

14. The applicant has filed a Notice of Motion dated 22 July 1999 seeking an order that the Notice of Motion dated 4 June 1999 filed on behalf of the respondent be dismissed.

15. Initially Mr McEwen submitted that the application for review is made under the slip rule. Relevantly he submitted that the order ought to have been made that, in respect of the costs of the hearing before Assessor Roseth, the respondent council pay the costs of the applicant but not to exceed the sum of $10,000 on the ground that the Court was mistaken as to the basis upon which it intended to proceed to make an order. The “slip or omission” identified is the failure to identify for the Court and for the Court to then take cognisance of the effect of the $10,000 limitation.

16. In the circumstances which I have outlined by reference to what occurred at the earlier hearings, it is difficult to understand that the order made regarding the costs of the hearing before Assessor Roseth did not reflect the intention of the Court. All the Court did was to expand the application of the indemnity certificate under the Act to cover the costs of the first trial at the invitation of both parties. There was no suggestion that either party was concerned about statutory limitation on the amount recoverable from the fund. The issue was not addressed. That is not inadvertence on the part of the Court.

17. Even if the Court accepted the submission that when it made the orders, it failed to take into account a relevant matter, namely the statutory limit of $10,000, that is not a matter which can be rectified once the orders have been perfected. An error of that kind is not contemplated by the slip rule. In any event, if it was relevant for the Court to take into account the provisions of s 6(2A) it was not a matter raised as an issue between the parties and therefore did not fall for determination.

18. Ultimately, the application by the council must be seen for what it is. That is an application for the Court to review its decision rather than the form of the orders made. Having regard to the principle of the finality of litigation, it is not appropriate in these circumstances for the Court to exercise any discretion it might have to overturn the orders already made.

19. The Notice of Motion dated 4 June 1999 is dismissed.

20. The applicant seeks an order that the respondent pay its costs of the Motion on an indemnity basis.

21. No submission was made in support of such an order. In the exercise of its discretion in regard to costs, the Court is satisfied nevertheless that the applicant is entitled to an order for costs incurred in relation to the Notice of Motion it having been entirely successful by having the Notice of Motion dismissed. If neither party applies to make further submissions in regard to the question of costs within seven days, an order will be made that the respondent pay the applicant’s costs of the Notice of Motion.