Re Western Australian Planning Commission; Ex Parte Solomon
[2010] WASCA 236 (S)
•23 NOVEMBER 2010
RE WESTERN AUSTRALIAN PLANNING COMMISSION; EX PARTE SOLOMON [2010] WASCA 236 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASCA 236 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:74/2010 | 23 NOVEMBER 2010 | |
| Coram: | PULLIN JA NEWNES JA | 23/11/10 | |
| 15/12/10 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | No order as to costs made | ||
| B | |||
| PDF Version |
| Parties: | GREGORY HOWARD SOLOMON DOUGLAS HOWARD SOLOMON STEPHEN GEOFFREY BEYER LEE HELEN SOLOMON NOREEN NYUNT WESTERN AUSTRALIAN PLANNING COMMISSION COMMERCIAL PROPERTIES PTY LTD |
Catchwords: | Costs Order nisi discharged Appropriate costs order |
Legislation: | Nil |
Case References: | Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302. Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 One.Tel Ltd v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE WESTERN AUSTRALIAN PLANNING COMMISSION; EX PARTE SOLOMON [2010] WASCA 236 (S) CORAM : PULLIN JA
- NEWNES JA
DECISION : 15 DECEMBER 2010 FILE NO/S : CACV 74 of 2010 MATTER : In the matter of an application for a writ of certiorari against the Western Australian Planning Commission EX PARTE
GREGORY HOWARD SOLOMON
First Applicant
DOUGLAS HOWARD SOLOMON
Second Applicant
STEPHEN GEOFFREY BEYER
Third Applicant
LEE HELEN SOLOMON
Fourth Applicant
NOREEN NYUNT
Fifth Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
First Respondent
COMMERCIAL PROPERTIES PTY LTD
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : SIMMONDS J
Citation : RE WESTERN AUSTRALIAN PLANNING COMMISSION; EX PARTE SOLOMON [No 2] [2010] WASC 328
File No : CIV 1574 of 2010
Catchwords:
Costs - Order nisi discharged - Appropriate costs order
Legislation:
Nil
Result:
No order as to costs made
Category: B
(Page 3)
Representation:
Counsel:
First Applicant : Mr D H Solomon
Second Applicant : Mr D H Solomon
Third Applicant : Mr D H Solomon
Fourth Applicant : Mr D H Solomon
Fifth Applicant : Mr D H Solomon
First Respondent : Mr E M Heenan
Second Respondent : Mr M J McCusker QC
Solicitors:
First Applicant : Solomon Brothers
Second Applicant : Solomon Brothers
Third Applicant : Solomon Brothers
Fourth Applicant : Solomon Brothers
Fifth Applicant : Solomon Brothers
First Respondent : State Solicitor for Western Australia
Second Respondent : Hardy Bowen
Case(s) referred to in judgment(s):
Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194
Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302.
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
One.Tel Ltd v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
(Page 4)
1 PULLIN JA: The issue between the parties concerns the appropriate costs order following the applicants' abandonment of the proceedings by moving for and obtaining a discharge of the order nisi which had been made in its favour. The applicants have asked that there be no order as to costs and the respondents have sought an order for costs against the applicants.
2 The background is that the second respondent proposed a subdivision of land near land occupied by the applicants. The applicants are trustees of a charitable trust.
3 The applicants sought an order nisi to review the decision of the first respondent which had granted subdivisional approval. The application for the order nisi was opposed but granted by Simmonds J and the order nisi was made returnable in the Court of Appeal. The applicant sought a stay order which was opposed but granted. The effect of the stay was to restrain the Western Australian Planning Commission (WAPC) from indorsing its approval on the survey strata plan. Liberty was granted to the second respondent to apply to set aside or vary the stay order.
4 It may be inferred that the second respondent proceeded to do work necessary to ensure that all conditions attached to the WAPC approval were satisfied. In the following few months, the second respondent took no steps to take advantage of the liberty to apply to vary or set aside the stay order and did not seek an urgent appeal order.
5 The applicants took prompt steps to ensure an early hearing of the return of the order nisi. By November, the applicants had filed all necessary documents and were awaiting a hearing.
6 The next relevant event was that the second respondent satisfied all of the conditions imposed on the subdivisional approval and then applied to vary or set aside the stay order. An affidavit in support deposed that there were persons willing to purchase some of the new lots.
7 On 8 November 2010, an order was made by Simmonds J in effect requiring the applicants to give an undertaking as to damages if the stay preventing the WAPC from indorsing its approval on the strata plan was to continue. The applicants were given seven days to provide the undertaking. The applicants, as trustees, decided that they were not prepared to risk the assets of the trust and therefore decided to challenge the decision of Simmonds J by way of interlocutory appeal. They sought a stay of Simmonds J's order of 8 November 2010 pending the
(Page 5)
- determination of the proceedings in this court and in the proposed interlocutory appeal.
8 At the hearing of the applicants' stay application, the first applicant said that if the applicants did not succeed in obtaining the stay, then they would abandon the primary proceedings in this court. In reasons which have been published, the application for a stay was dismissed and the applicants thereupon moved for and obtained an order discharging the order nisi. The proceedings were in effect, discontinued. The respondents then applied for the order for costs and the applicants, as indicated above, submitted that there should be no order as to costs.
9 The power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and, as a general rule, the successful party is entitled to his or her costs. Success in the action or on the particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 566 - 568 (McHugh J). However, when there has been no hearing on the merits, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 (McHugh J). The issue about costs cannot be resolved by the court trying a hypothetical action between the parties because this would burden the parties with the cost of a litigated action which, by the abandonment of the action, they have avoided: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (624). If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled, or its further prosecution became futile, the proper exercise of the costs discretion will usually mean the court will make no order as to costs of the proceedings: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (625). However, if after litigating for some time, one party effectively surrenders to the other, then the court may make a costs order against that party: One.Tel Ltd v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548, 552 - 553 (Burchett J); Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302.This might be justified where it was clear that the strength of the other side's case led to the surrender thereby allowing the inference to be drawn that the abandoning party had acted unreasonably in suing or defending in the first place.
(Page 6)
10 The applicants acted reasonably in commencing proceedings. Their application was sufficiently well founded to justify a grant of an order nisi. The result on that interlocutory step is a relevant factor in determining the reasonableness of the conduct of the parties: Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194, 201 (Hill J).
11 They acted reasonably in taking prompt steps to try and bring the proceedings in the Court of Appeal to an early hearing. The applicants acted reasonably by promptly discontinuing the proceedings once they knew that they were exposed to a potential liability for damages if they wanted to keep in place the stay ordered by Simmonds J in June 2010. They correctly understood that if they did not give the undertaking as to damages, the stay preventing the indorsement of the strata plan would come to an end, that the second respondent could then sell land and that the interests of third parties would be a potential discretionary reason for refusing to make the order nisi absolute. The second respondent acted reasonably in defending the proceedings and seeking an undertaking as to damages to protect itself from losses which might be suffered.
12 The first respondent had no basis for claiming a costs order in its favour. No order for costs is sought against it by the applicants.
13 In those circumstances, the appropriate order is that there should be no order as to the costs of the proceedings.
14 NEWNES JA: I agree with Pullin JA.
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