Roden v Bandora Holdings Pty Ltd (No 2)

[2015] NSWLEC 202

Land and Environment Court

New South Wales

Medium Neutral Citation:	Roden v Bandora Holdings Pty Ltd (No 2) [2015] NSWLEC 202
Hearing dates:	Written submissions of the First Respondent filed 17 November 2015 and the Applicant filed 1 December 2015
Date of orders:	22 December 2015
Decision date:	22 December 2015
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See [14]
Catchwords:	COSTS – respondent seeks costs of two notices of motion to strike out two identical notices to produce – determination of issue by Court and capitulation by applicant in withdrawing the second notice to produce – exercise of Court’s discretion to make a costs order on basis that costs should follow the event
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98 Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191
Category:	Costs
Parties:	Colin Roden (Applicant) Bandora Holdings Pty Ltd (First Respondent) Byron Shire Council (Second Respondent)
Representation:	Counsel: Mr F G Kalyk (Applicant) Mr S Nash (First Respondent) Submitting appearance (Second Respondent)   Solicitors: Wilshire Webb Staunton Beattie Lawyers (Applicant) McCartney Young Lawyers (First Respondent) Marsdens Law Group (Second Respondent)
File Number(s):	40019 of 2015

Judgment

1. During the substantive hearing on 21 October 2015 of the Applicant’s judicial review proceedings, now dismissed in Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191, the Applicant called on a Notice to Produce for Inspection dated 7 October 2015 addressed to the First Respondent. The First Respondent filed in Court a Notice of Motion dated 20 October 2015 seeking to set aside that Notice to Produce and sought to press it immediately. Following discussion with me the Notice to Produce was not pressed by the Applicant on 21 October 2015. The First Respondent now seeks its costs of preparing the Notice of Motion dated 20 October 2015 and its costs of an earlier Notice of Motion dated 18 June 2015 which sought to set aside an earlier identical Notice to Produce to Court dated 12 June 2015. The first Notice of Motion dated 18 June 2015 was returnable before Pepper J on 30 June 2015. It was not determined and consent orders were made on that date.

2. The parties requested that this costs application be dealt with on the basis of written submissions and an agreed bundle of documents. No separate hearing was necessary.

3. A further Notice to Produce for Inspection dated 15 October 2015 which sought material relating to landscaping was not called on before me (referred to in the First Respondent’s Notice of Motion dated 20 October 2015). I will not consider that Notice to Produce as part of this ruling.

Evidence

4. The agreed bundle of documents on the question of costs of the First Respondent’s Motions to set aside the Applicant’s Notices to Produce dated 12 June 2015 and 7 October 2015 filed on 6 November 2015 contained the following documents:

1. Applicant’s Notice to Produce to Court dated 12 June 2015 which sought:

1   Copies of financial statements, tax returns, BAS returns, and invoices sent and received by Bandora Holdings Pty Ltd relating to activities on the property known as 440 Bangalow Road, TALOFA NSW 2481 for the period 1 July 2012 to date; …

2. First Respondent’s Notice of Motion dated 18 June 2015 to set aside Notice to Produce dated 12 June 2015;

3. First Respondent’s outline of submissions on Motion to set aside Notice to Produce dated 29 June 2015 (also relied on for Notice of Motion dated 20 October 2015);

4. Applicant’s outline of submissions on First Respondent’s Motion to set aside Notice to Produce dated 29 June 2015;

5. Short Minutes of Order dated 30 June 2015 which provided:

BY CONSENT

1.   The Court notes that:

a)   the Applicant’s “Notice to Produce to Court” dated and filed on 12 June 2015 is withdrawn; and

b)   the First Respondent’s Notice of Motion dated 18 June 2015 to set aside this Notice to Produce is withdrawn.

2.   The Court orders that:

a)   the costs of the Notice to Produce and Notice of Motion are reserved.

6. Applicant’s Notice to Produce for Inspection dated 7 October 2015 which sought:

1   Copies of financial statements, tax returns, BAS returns, and invoices sent and received by Bandora Holdings Pty Ltd relating to activities on the property known as 440 Bangalow Road, TALOFA NSW 2481 for the period 1 July 2012 to date; …

7. First Respondent’s Notice of Motion dated 20 October 2015 to set aside Notice to Produce dated 7 October 2015;

8. email to McCartney Young Lawyers (MY Lawyers) from Wilshire Webb Staunton Beattie Lawyers (Wilshire Webb) of 8 May 2015 and email to Wilshire Webb from MY Lawyers of 5 May 2015.

9. email to MY Lawyers from Wilshire Webb of 12 June 2015;

10. email to Wilshire Webb from MY Lawyers of 18 June 2015;

11. email to MY Lawyers and Wilshire Webb from Wilshire Webb and email to Wilshire Webb from MY Lawyers both dated 18 June 2015;

12. email to MY Lawyers from Wilshire Webb of 22 June 2015;

13. email to Wilshire Webb from MY Lawyers of 22 June 2015;

14. email to MY Lawyers from Wilshire Webb of 23 June 2015;

15. email to Wilshire Webb from MY Lawyers of 24 June 2015;

16. email to MY Lawyers from Wilshire Webb of 26 June 2015 and email to Wilshire Webb from MY Lawyers of 24 June 2015;

17. email to Wilshire Webb from MY Lawyers and email to MY Lawyers from Wilshire Webb both dated 29 June 2015;

The email correspondence in May and June 2015 between the Applicant’s solicitors and the First Respondent’s solicitors concerned matters relating to evidence, including the Applicant’s Notice to Produce dated 12 June 2015. The Applicant’s position was that the information sought in that Notice went to a material issue. The First Respondent indicated its intention to oppose the above Notice on the basis that the information sought was irrelevant.

18. email to MY Lawyers from Wilshire Webb of 7 October 2015;

19. email to MY Lawyers from Wilshire Webb of 15 October 2015;

20. emails (two) to MY Lawyers from Wilshire Webb both dated 15 October 2015; and

21. email to Wilshire Webb from MY Lawyers of 16 October 2015.

The email correspondence in October 2015 between the Applicant’s solicitors and the First Respondent’s solicitors concerned further matters relating to evidence, including the Applicant’s Notice to Produce dated 7 October 2015. The First Respondent maintained that the information sought was irrelevant and was prepared to make an admission provided that the Applicant made clear what legal submission would be made on the basis of that admission. The Applicant disagreed that the information sought was irrelevant and indicated its intention to call on the Notices to Produce if the admissions requested were not made.

First Respondent’s submissions

5. The First Respondent’s primary ground in support of its Notice of Motion dated 20 October 2015 is that there was a determination of it by the Court on 21 October 2015 in the First Respondent’s favour and costs should follow the event (as provided by Uniform Civil Procedure Rules 2005 (UCPR), r 42.1).

6. The submissions made by counsel for the First Respondent on 21 October 2015 were the same as the intended submissions in support of the Notice of Motion dated 18 June 2015. It must therefore be assumed that the Applicant could not have succeeded on the Notices at either hearing: they were relevantly the same Notices; the same submissions (in terms) by the Applicant in support; and the same opposition by the First Respondent; and consequently the same result.

7. The subject matter of the dispute between the parties was, in effect, determined. There was a lengthy exchange between her Honour and counsel for the Applicant. Counsel for the First Respondent also made oral submissions in addition to the written submissions. Counsel for the Applicant replied. The Applicant’s withdrawal of the second Notice to Produce was only after the Court expressed a position on the Notice (effectively both Notices). A finding was made by the Court. An order was not made dismissing the Notice because, having determined that the Notice should be set aside, the Applicant responded to the Court’s determination by withdrawing the Notice.

Applicant’s submissions

8. The Court has not ruled on either of the First Respondent’s Notices of Motion. Accordingly, it is not in contest that the Court should not determine the Notices of Motion solely for the purpose of determining costs. The Court has not heard that contest. Written submissions were prepared and these have not been the subject of any address to or consideration by the Court. The preliminary discussions of the matter before the Court do not constitute either the hearing of the relevant contest, nor a determination of the matter.

Applicant should pay the First Respondent’s costs of Notices of Motion

9. Section 98 of the Civil Procedure Act 2005 (NSW) and r 42.1 of the UCPR (adopted for Class 4 proceedings (Sch 1, UCPR)) are relevant on the exercise of discretion to award costs in this matter. The usual order is that costs follow the event so that a successful party has its costs paid.

10. On 21 October 2015 the first day of hearing the Applicant called on a Notice to Produce dated 7 October 2015 which sought financial records of the First Respondent as set out in par 4(f). The First Respondent moved on its Notice of Motion dated 20 October 2015 to set aside that Notice to Produce. The transcript shows that after questions from me and an indication that I would not allow the Applicant to call on that Notice to Produce the Applicant then withdrew the Notice of Motion. The transcript shows that the discussion with me took place after the First Respondent moved on its Notice of Motion. The events confirm the First Respondent’s view of events, namely that there was both a determination by the Court and a consequential capitulation by the Applicant in withdrawing the Notice to Produce. Consequently the First Respondent is the successful party.

11. The Notice to Produce dated 7 October 2015 is identical to the Notice to Produce dated 12 June 2015 the subject of consent orders on 30 June 2015. The First Respondent’s written submissions in relation to both Notices of Motion are very similar, not surprisingly.

12. Costs are compensatory not punitive per Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 566-567. The First Respondent incurred costs in making and preparing for both Notices of Motion which are virtually identical. It succeeded. The usual costs order applies in the absence of the Applicant persuading the Court it should depart from it and in the absence of disentitling conduct by the First Respondent.

13. I accept the First Respondent’s submissions that there was no unreasonable conduct on its part. The First Respondent gave early notice of its position and the reasons why the Notices to Produce were fundamentally flawed. It invited the Applicant at a very early stage to withdraw the Notices. At all material times the Applicant was aware of the First Respondent’s position up to and including the ultimate hearing. The First Respondent should have its costs for both Notices to Produce paid by the Applicant.

Order

14. The Court orders that the Applicant pay the First Respondent’s legal costs incurred in relation to the Notices of Motion dated 18 June 2015 and 20 October 2015 not including costs related to the Notice to Produce for Inspection dated 15 October 2015.

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Decision last updated: 30 December 2015