Property Council of Australia Limited v Direct Factory Outlets Homebush Pty Limited [No 2]

[2003] NSWLEC 119

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Land and Environment Court

of New South Wales

CITATION:

Property Council of Australia Limited v Direct Factory Outlets Homebush Pty Limited & Ors [No 2] [2003] NSWLEC 119

PARTIES:

APPLICANT
Property Council of Australia Limited

RESPONDENTS
Direct Factory Outlets Homebush Pty Limited & Ors

FILE NUMBER(S):

40871 of 2002

CORAM:

Pain J

KEY ISSUES:

Costs :- notices of motion for summary dismissal not proceeded with - who should bear costs of motions - costs should be costs in the cause

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

14/03/2003

EX TEMPORE
JUDGMENT DATE :

03/14/2003

LEGAL REPRESENTATIVES:

APPLICANTS
Mr MG Craig QC with Mr JB Maston (barrister)
SOLICITORS
Speed and Stracey

FIRST RESPONDENT
Mr R Lancaster (barrister)
SOLICITORS
Minter Ellison

SECOND RESPONDENT
Mr A Hartcher (solicitor)
SOLICITORS
Watkins Tapsell

THIRD RESPONDENT
Mr C McEwen (barrister)
SOLICITORS
Gadens Lawyers

FOURTH RESPONDENT
Mr W O'Rourke (solicitor)
SOLICITORS
Deacons

FIFTH RESPONDENT
Mr G Newport (barrister)
SOLICITORS
Harris Hyde Page

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
40871 of 2002
Pain J
14 March 2003
PROPERTY COUNCIL OF AUSTRALIA LIMITED
(ACN 008 474 422)



Applicant
v
DIRECT FACTORY OUTLETS HOMEBUSH PTY LIMITED
(ACN 094 951 112)
First Respondent

SANITY MUSIC STORES PTY LTD
(ACN 072 187 298)
Second Respondent

PERFUMANIA PTY LIMITED t/as THE PERFUME CONNECTION
(ACN 057 828 378)
Third Respondent

COLORADO GROUP LIMITED t/as MATHERS SHOES
(ACN 004 327 566)
Fourth Respondent

FOAD HADDAD & RHONDA HADDAD t/as FLORENTINE EYEWEAR

Fifth Respondent

Judgment on costs of Notices of Motion for summary dismissal

1. In relation to the costs for the First, Second, Fourth and Fifth Respondents' respective summary dismissal motions, the order should be that costs be costs in the cause. I have heard slightly varying chronologies in relation to each Respondent as to what was done when in relation to the Applicant's Class 4 proceedings. It seems to me, considering those submissions, that essentially the Respondents were acting reasonably when they filed and served their respective Notices of Motion seeking summary dismissal of the Applicant's case. It was reasonable that on 28 February 2003 they sought to have these motions set down for hearing, as it appears that they had not received at that time the affidavit of Mr Speed.

2. In relation to the affidavit of Mr Speed, it is a substantial document. In the case of at least two Respondents it was not received until approximately 4 or 5 March 2003 and they would obviously have needed time to consider that affidavit before deciding whether they would pursue the motion today. It may be that some of the Respondents have been slightly tardy this week in informing the Applicant that they were not intending to proceed with their motion of summary dismissal. In all the circumstances, costs in the cause is appropriate.

Order
3. The costs of the First, Second, Fourth and Fifth Respondents' Notices of Motion for summary dismissal (dated 24 February 2003, 26 February 2003, 23 February 2003 and 25 February 2003 respectively) are to be costs in the cause.