Symchung Pty Limited v Concord Council - [1998] NSWLEC 111

Land and Environment Court

of New South Wales

CITATION: Symchung Pty Limited v. Concord Council [1998] NSWLEC 111

PARTIES:
APPLICANT
Symchung Pty Ltd
RESPONDANT
Concord Council

FILE NUMBER(S): 10128 of 1998

CORAM: Bignold J

KEY ISSUES: :-

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING: 29/05/98

EX TEMPORE
JUDGMENT DATE :
05/29/1998

LEGAL REPRESENTATIVES:
APPLICANT
Mr P Schofield, Solicitor
Pike Pike & Fenwick
RESPONDENT
Mr D M Carson, Solicitor
Lorton Duke & Co.

JUDGMENT:

The Court has before it rival Motions seeking costs by the parties against each other in class one proceedings which were terminated on 21 April 1998 when the Applicant discontinued the proceedings which had been fixed for hearing by the Court on 23 and 24 April this year.

The circumstances outlining the litigation history and indeed the history to the development appeal including the circumstances leading to its termination by dint of the notice of discontinuance being filed on 21 April have been set forth in the affidavits that have been filed by the parties and I have been assisted by the competing argument which focuses attention upon the history of the development application and the proceedings in the Court. On the face of it an application for costs by a party against whom the proceedings have been discontinued obviously stands on firmer ground than an application for costs by the discontinuing party. This is because a discontinuance of proceedings generally indicates that costs have been wasted by virtue of the discontinuance of the proceedings, which means that the claim brought to the Court is never prosecuted to a conclusion. It is because of these considerations that the general practice in the Court in relation to costs in class 1 and 2 proceedings (and the present

proceedings fall within class 1 of the Court's jurisdiction) is that a discontinuance of proceedings at a time particularly close to the fixed hearing date gives rise presumptively to an entitlement for costs in favour of the party discontinued against, at least to the extent of costs thrown away by the discontinuance.

However as I pointed out in the recent judgment in the Manly Council case (which has been cited in argument) the principle does not apply automatically or inexorably and ultimately the question of discretion to order the payment of costs in the context of the Court's general policy that costs in class 1 and 2 proceedings are not generally awarded save for exceptional circumstances requires a consideration of the facts of each case and in particular as I pointed out in that case, the conduct of the parties in the litigation and in matters relevant thereto.

In a nutshell, the Applicant in the present case claims that the reason for the discontinuance was the belated raising in the Council's case of an entirely new and different case from that which had been presented at the time of the filing of the appeal and that which had been outlined when the matter was before the Registrar at callover when the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] NSWLEC 111
Decision Date: 05/29/1998

CaseChat Overview and Summary

Symchung Pty Ltd, the applicant, filed a motion for costs against Concord Council, the respondent, after discontinuing proceedings related to a development appeal. The proceedings were terminated on 21 April 1998, shortly before the scheduled hearing dates of 23 and 24 April. Both parties sought costs in their respective motions, with the applicant claiming that the discontinuance was reasonable due to the respondent's belated change of position in the case. The respondent, on the other hand, argued that it was entitled to costs due to the applicant's discontinuance of the proceedings.

The key legal issues before the court were whether the discontinuance of the proceedings justified an award of costs in favour of the respondent and whether the applicant was entitled to costs despite discontinuing the proceedings. The court considered the general policy of not awarding costs in class 1 and 2 proceedings, as well as the conduct of the parties in the litigation and the specific circumstances of the case. In particular, the court focused on the timing and nature of the respondent's change in stance, which occurred just two weeks before the scheduled hearing.

The court found that the respondent's belated change of position, which represented a dramatic volte-face in the case, disqualified it from any entitlement to costs against the applicant. The court held that the discontinuance by the applicant was a reasonable response to the respondent's changed stance and, as such, the motion for costs brought by the respondent had to be dismissed. The court also found that the applicant had not made out a case for costs in its favour, and thus, the applicant's motion for costs was dismissed as well.

The court concluded that no order for costs should be made in the proceedings, as the circumstances did not warrant an award of costs in either party's favour. The decision highlights the importance of the timing and nature of changes in a party's position during litigation and the impact it may have on the entitlement to costs.

Orders