Land and Environment Court
of New South Wales
CITATION: Port Stephens Council v Randell [2000] NSWLEC 169 PARTIES: APPLICANT
RESPONDENT
Port Stephens Council
RandellFILE NUMBER(S): 40121 [No 2] of 1999 CORAM: Cowdroy J KEY ISSUES: Costs :- Indemnity Costs LEGISLATION CITED: Federal Court of Australia Act 1976 (Cth)
Land and Environment Court Act 1979
Land and Environment Court Rules 1996
Supreme Court Rules 1970CASES CITED: Albert Hadid v Lenvest Communications Inc & Ors [2000] FCA 628;
Flemington Properties Pty Limited v Raine & Horne Commercial Pty Limited & Or (11 February 1998, no. 0053/98, Federal Court of Appeal) ;
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Ors (1988) ALR 397;
Multicon Engineering v Federal Airports Corporation 138 ALR 245;
Stelios Christofidellis & Ors v Ned & Visjna Zdrilic & Ors [2000] FCA 679DATES OF HEARING: 2/08/00 DATE OF JUDGMENT:
08/28/2000LEGAL REPRESENTATIVES:
APPLICANT
Mr J Maston (Barrister)SOLICITORS
Sparke HelmoreRESPONDENT
SOLICITORS
Mr J Robson (Barrister)
Deacon Graham James
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40121 of 1999
CORAM: Cowdroy J
DECISION DATE: 28/8/00
Applicant
Respondent
1. Port Stephens Council (“the applicant”) seeks an order that its costs of the class four proceedings be paid by the respondent and that such costs be paid on an indemnity basis from the 17 May 2000. On that date an attempt was made by the parties to negotiate a settlement of the proceedings and in the course thereof the applicant made a without prejudice offer (“the offer”) to the respondent. The offer provided that if the respondent removed dam F from his property and paid the applicant’s costs, the applicant would not press the Court for any order in respect of the other disputed dams on the respondent’s property namely dams A, B and C subject to such dams receiving geo-technical and hydrological certification. The offer was not accepted and the hearing of the proceedings continued. On 14 June 2000 the Court determined that dams C and F should be removed, the sites rehabilitated, and that dams A and B required appropriate certification.
2. The applicant contends that since the respondent has not achieved a more favourable result than the offer, the respondent should be ordered to pay indemnity costs from the date of the offer.
3. In Multicon Engineering Pty Limited v Federal Airports Corporation 138 ALR 245 Rolfe J considered an application for indemnity costs under Pt 52 r 17 of the Supreme Court Rules 1970 (“the SC Rules”) and said at 451:-
In my opinion the proper approach to take to an offer of compromise, whether made under the Rules or pursuant to a Calderbank letter, is that there should be a prima facie presumption in the event of the offer not being accepted and in the event of the recipient of the offer not receiving a result more favourable than…
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- AGLC
- Port Stephens Council v Randell [2000] NSWLEC 169
- Case
- [2000] NSWLEC 169
- Decision Date
CaseChat Overview and Summary
The Court examined the principles for awarding indemnity costs, referencing cases such as Multicon Engineering v Federal Airports Corporation and Stelios Christofidellis & Ors v Ned & Visjna Zdrilic & Ors. The Court determined that the test for awarding indemnity costs involves assessing whether the rejection of a settlement offer was unreasonable, requiring a showing that the defendant's conduct was driven by ulterior motives or a wilful disregard of known facts or clearly established law. Given that the primary issue in the proceedings was the application of planning instruments, and Randell had a reasonable belief that his defence was arguable, the Court found that the rejection of the settlement offer was not unreasonable.
As a result, the Court dismissed the application for indemnity costs. However, it did order that the unsuccessful party, Randell, should pay the successful party's costs of the proceedings. The Court also issued specific orders regarding the removal of certain dams and the requirements for obtaining geo-technical and hydrological certifications for others. The orders were stayed for a period of twenty-eight days to allow for any necessary appeals or further applications.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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