Port Stephens Council v Randell

[2000] NSWLEC 169

Land and Environment Court

of New South Wales

CITATION:

Port Stephens Council v Randell [2000] NSWLEC 169

PARTIES:

APPLICANT
Port Stephens Council

RESPONDENT
Randell

FILE 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 1970

CASES 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 679

DATES OF HEARING:

2/08/00

DATE OF JUDGMENT:

08/28/2000

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Maston (Barrister)

SOLICITORS
Sparke Helmore

RESPONDENT
Mr J Robson (Barrister)

SOLICITORS
Deacon Graham James

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 40121 of 1999
CORAM: Cowdroy J
DECISION DATE: 28/8/00

Port Stephens Council

Applicant

v

Anthony Victor Randell

Respondent

JUDGMENT [No 2]

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…