Perry Properties Pty Limited v Ashfield Municipal Council
[2000] NSWLEC 264
•12/20/2000
Land and Environment Court
of New South Wales
CITATION: Perry Properties Pty Limited v Ashfield Municipal Council [2000] NSWLEC 264 PARTIES: APPLICANT
RESPONDENT
Perry Properties Pty Limited
Ashfield Muncipal CouncilFILE NUMBER(S): 10513 of 1999 CORAM: Cowdroy J KEY ISSUES: Costs :- Appeal pursuant to s 56A of the Land and Environment Court Act 1979 - appeal upheld - successful appellant seeking order for costs - Practice Direction 1993 not applicable to appeal pursuant to s 56A of the Land and Environment Court Act - costs ordered in favour of appellant. LEGISLATION CITED: Land and Environment Court Act 1979 s 56A
Practice Direction 1993
Land and Environment Court Rules 1996 Pt 7, Pt 9, Pt 13 r 9CASES CITED: David McGregor v Bathurst City Council [1995] NSWLEC 71;
Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220 ;
Hughes v Western Australian Cricket Association (inc.) & Ors (1986) ATPR 40-748 ;
Latoudis v Casey (1990) 170 CLR 534 ;
MacDonald v Mosman Municipal Council (unreported no 10166/99 11 April 2000) ;
Oshlack v Richmond River Council (1998) 193 CLR 72 ;
Outdoor Australia v Auburn Council (1996) 89 LGERA 365DATES OF HEARING: 30/11/00 DATE OF JUDGMENT:
12/20/2000LEGAL REPRESENTATIVES:
APPLICANT
Ms V Evans (Solicitor)SOLICITORS
Uther Webster & EvansRESPONDENT
SOLICITORS
Mr W O'Rourke (Solicitor)
Deacons Graham & James
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 10513 of 2000
CORAM: Cowdroy J
DECISION DATE: 20/12/2000
Applicant
Respondent
1. By notice of motion dated 16 November 2000 Perry Properties Pty Ltd (“the applicant”) seeks an order that Ashfield Municipal Council (“the respondent”) pay its costs in relation to an appeal pursuant to 56A of the Land and Environment Court Act 1979 (“Court Act”). Such appeal was determined in the applicant’s favour on 21 September 2000.
The submissions of the applicant
2. Pursuant to Practice Direction 1993 (“the Practice Direction”) the Court will only make an order for costs in planning and building appeals if the circumstances are exceptional. The applicant submits that the Practice Direction does not apply to an appeal pursuant to s 56A of the Court Act. The applicant further submits that the usual costs order made by the Court in an appeal pursuant to s 56A is that costs follow the event.
The submissions of the respondent
3. The respondent submits that an appeal pursuant to s 56A of the Court Act forms part of class one proceedings since such appeal arises directly from a merits determination of the Court. As a class one determination of the Court is subject to the provisions of the Practice Direction the respondent submits that an appeal from such determination is also subject to the provisions of the Practice Direction.
Costs in a s 56A appeal
4. The Practice Direction relevantly provides;
10 The practice of the Court is that no order for costs is made
in planning and building appeals unless the circumstances
are exceptional.
In Outdoor Australia v Auburn Council (1996) 89 LGERA 365 at 367 Pearlman J held that the purpose of the Practice Direction was to encourage dissatisfied parties to seek review of planning and building decisions without the risk of costs if unsuccessful. His Honour Justice Lloyd J in MacDonald v Mosman Municipal Council (unreported no 10166/99 11 April 2000) applied Outdoor Australia v Auburn Council. His Honour determined that a motion for costs made after judgment in a class one proceedings is not encompassed by the Practice Direction because such a motion was not part of the planning or building appeal.
5. An appeal pursuant to s 56A of the Court Act is not a part of ‘ planning or building appeals’ . Rather such an appeal is a motion made subsequent to a determination in a planning or building appeal. Once the judgment of a Court has been delivered a successful litigant is entitled to the fruits of the litigation pending the determination of any appeal: see Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220 at 223. Generally therefore a judgment brings proceedings to a conclusion and an appeal from a judgment at first instance constitutes additional proceedings.
6. This approach is supported by the Land and Environment Court Rules 1996 (“the Court Rules”). Part 13 r 39 of the Court Rules provides inter alia that an appeal pursuant to s 56A of Court Act does not operate as a stay on the decision of a commissioner. Additionally the structure of the Court Rules which provide a separate process for an appeal pursuant to s 54A of the Court Act demonstrates that such appeal is not a part of a planning and building appeal. Part 13 Div 10 of the Court Rules provides procedures for instituting an appeal pursuant to s 56A of the Court Act. Such procedures are distinct both from the procedures to commence a class one, two or three proceeding (see Pt 7 of the Court Rules) and from the procedures for a notice of motion in such proceedings (see Pt 9 of the Court Rules).
7. Once a judgment has been delivered in a planning or building appeal the purpose of the Practice Direction is fulfilled and its application is necessarily at an end. This principle is consistent with the ratio decidendi in MacDonald v Mosman Municipal Council and the approach of Pearlman J in David McGregor v Bathurst City Council [1995] NSWLEC 71. In David McGregor v Bathurst City Council Pearlman J stated, ‘ As to costs, the usual practice in s 56A appeals is that costs follow the event... ’.
8. Pursuant to s 69(2) of the Court Act the Court has a wide discretion when making an order for costs: Oshlack v Richmond River Council (1998) 193 CLR 72 at 88. Ordinarily costs follow the event: see Latoudis v Casey (1990) 170 CLR 534 at 543. Special circumstances may justify a departure from such general principle: see Hughes v Western Australian Cricket Association (inc.) & Ors (1986) ATPR 40-748 at 48,136.
9. In these proceedings the applicant was successful in its appeal pursuant to s 56A of the Court Act and there is nothing which persuades the Court that an award of costs should not follow the event. Accordingly the Court orders the respondent to pay the costs of the applicant in relation to the s 56A appeal and in relation to this notice of motion.
Orders
8. The Court Orders:-
1) The respondent to pay the costs of the applicant in relation to the appeal pursuant to s 56A of the Land and Environment Court Act 1979.
2) The respondent to pay the costs of the applicant for this notice of motion.
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