Pittwater Council v Varney - [2005] NSWLEC 651

Land and Environment Court

of New South Wales

CITATION:
Pittwater Council v Varney [2005] NSWLEC 651

PARTIES:
APPLICANT:
Pittwater Council
RESPONDENT:
Varney

FILE NUMBER(S):
40210 of 2001

CORAM:
Bignold J

KEY ISSUES:
Costs :- in class 4 proceedings where consent orders made—whether proceedings were necessary—whether prosecution of the proceedings was unreasonable—whether any estoppel by representation applies.

LEGISLATION CITED:
Land and Environment Court Act 1979, s 69

CASES CITED:
Oshlack v Richmond River Council (1998) 193 CLR 72;
Auburn Council v F N Eckold Pty Ltd (1974) 34 LGRA 101

DATES OF HEARING: 30/05/2005

DATE OF JUDGMENT:

11/15/2005

LEGAL REPRESENTATIVES:
APPLICANT:
Ms G Furness, Barrister
SOLICITORS
Mallesons Stephen Jaques
RESPONDENT:
Mr J Johnson, Barrister
SOLICITORS
Cowley Hearn

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

15 November 2005

40210 of 2001 PITTWATER COUNCIL v MARTIN WARWICK VARNEY
JUDGMENT

A. INTRODUCTION

1 HIS HONOUR: By its Notice of Motion filed 22 April 2005, the Applicant (the Council) seeks an order that the Respondent pay all of the Council’s costs in these class 4 proceedings which were commenced on 21 November 2001 and were concluded by consent orders made on 22 March 2002 and further consent orders made on 12 May 2004. Both those orders reserved the question of costs.

2 Based upon those outcomes as reflected in the consent orders the Council claims that it was the successful party in the proceedings and seeks its costs in the proceedings in accordance with established principle that costs follow the event.

3 The Respondent opposes the Council’s Motion on a number of different grounds—firstly on the ground that the Council was not successful in the proceedings, secondly on the ground that the proceedings were unnecessary, thirdly on the ground that the Council in the course of negotiations between the parties during the interval between the two sets of consent orders, made a representation to the Respondent which the Respondent acted upon to his detriment upon the basis of which the Respondent asserts that the Council is estopped from seeking any costs order against the Respondent. The Respondent claims its costs on the hearing of the Council’s Motion for costs.

4 Unfortunately, there is a protracted history documented in more than 100 written communications (totalling nearly 400 pages) passing between the parties’ solicitors that are relevant to this litigation and which must be surveyed in order to adjudicate upon the disputed question of costs.

5 In surveying the litigation history four distinct or discrete period or phases can be identified and it is instructive to consider those separately from the viewpoint of the disputed costs question. They comprise—

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pittwater Council v Varney

Details

AGLC: Pittwater Council v Varney [2005] NSWLEC 651
Case: [2005] NSWLEC 651
Decision Date: 11/15/2005

CaseChat Overview and Summary

The case of Pittwater Council v Varney involves a dispute over costs in class 4 proceedings that were commenced on 21 November 2001 and concluded by consent orders made on 22 March 2002 and further consent orders made on 12 May 2004. The applicant, Pittwater Council, seeks its costs in the proceedings in accordance with the established principle that costs follow the event. The respondent opposes the applicant’s motion on several grounds, including that the applicant was not successful in the proceedings, the proceedings were unnecessary, and the applicant is estopped from seeking any costs order against the respondent. The court examines the four distinct periods or phases in the litigation history to adjudicate upon the disputed costs question. The court finds that the applicant was the successful party in the litigation by obtaining the interlocutory relief and final relief. However, the proceedings were either unnecessarily or unreasonably prosecuted by the applicant after the making of the final orders, which justifies the exclusion from any costs order that might be made in favor of the applicant. The court also finds that no relevant estoppel has been substantiated by the respondent to preclude the applicant from claiming its costs in the proceedings. Therefore, the court orders that the respondent shall pay the applicant’s costs incurred in the proceedings up to the date of the final orders, but no costs order is justified in respect of the proceedings thereafter. Each party bears its own costs in respect of the applicant’s Notice of Motion seeking costs.

Orders