Shara Projects Pty Ltd v Blacktown City Council (No 2)

[2023] NSWSC 258

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Shara Projects Pty Ltd v Blacktown City Council (No 2) [2023] NSWSC 258

Hearing dates:

3 February 2023

Date of orders:

23 March 2023

Decision date:

23 March 2023

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

That Shara Projects bear the Council’s costs of the proceedings, including the costs of the motion dismissed as the result of the orders made on 14 February 2023, as agreed or assessed.

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed — unsuccessful party ordered to pay costs of proceedings and motion — Civil Procedure Act 2005 (NSW), s 98 — Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Uniform Civil Procedure Rules 2005 (NSW), r 42

Cases Cited:

Shara Projects Pty Ltd v Blacktown City Council [2023] NSWSC 82

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Category:

Costs

Parties:

Shara Projects Pty Ltd (Plaintiff)
Blacktown City Council (Defendant)

Representation:

Counsel:
Mr D Eardley (Plaintiff)
Mr D Priestley SC (Defendant)

Solicitors:
ER Solicitors (Plaintiff)
McCulloch & Buggy Lawyers (Defendant)

File Number(s):

2018/296806

JUDGMENT

1. In February 2023 I dismissed a motion filed by Shara Projects Pty Ltd seeking to have the proceedings restored, which was opposed by Blacktown City Council: Shara Projects Pty Ltd v Blacktown City Council [2023] NSWSC 82.

2. This judgment deals with costs of the motion, as well as costs left outstanding by Harrison J in July 2022, when his Honour dealt with the self-executing orders which he had made in April, which had led to the proceedings being dismissed because Shara Projects had still failed to serve its outstanding expert evidence. The Council had then sought a costs order, which his Honour declined to make at that time, but gave it leave to pursue those costs at the appropriate time.

3. The motion having failed as it did, the Council’s case was that costs orders should be made in its favour in relation to the proceedings generally, as well as the motion.

4. The parties had been ordered to file short written submissions on costs in the event that there was any dispute about the appropriate costs order, within 14 days. While the Council filed its submissions and Shara Projects advised it was content for the question of costs to be dealt with on the papers, it filed no submissions, despite being given a further short opportunity in March 2023 to file them.  Shara Projects then confirmed that it would not be making any submissions.

5. There is no issue that the usual costs order is that costs follow the event, which in this case is an order that Shara Projects bear the Council’s costs as agreed or assessed: s 98 of the Civil Procedure Act 2005 (NSW) and r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW). Further, r 42.20 has the effect that unless the Court orders otherwise, the proceedings having been dismissed as they were, Shara Projects must pay the Council’s costs of the proceedings, to the extent they have been dismissed.

6. Despite this, Shara Projects opposed the orders sought, but did not advance any written submissions as to why the orders which the Act and the Rules contemplate, would not be made.

7. Costs must be ordered on a principled basis: Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [24]. As well as the requirements of the Rules there is a reasonable expectation that a successful party like the Council will have a costs order made in its favour: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67].

8. There is an onus falling on an unsuccessful party to demonstrate a just basis for departure from the usual order, but there was no attempt to meet that onus.

9. The circumstances in which the orders dismissing the proceedings and later Shara Projects’ motion are explained in the February judgment, which must be read together with these reasons: Shara Projects at [7]-[9] and [46]-[73].

10. There is also no suggestion of any misconduct on the proceedings by the Council which might warrant a departure from the usual order: Oshlack at [69].

11. In all these circumstances I am satisfied that the usual costs order must be made.

Orders

12. For these reasons I order that Shara Projects bear the Council’s costs of the proceedings, including the costs of the motion dismissed as the result of the orders made on 14 February 2023, as agreed or assessed.

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Amendments

24 March 2023 - Date 3 February changed to 14 February in Decision and in Paragraph 12