Taylor v Port Macquarie-Hastings Council

[2010] NSWLEC 146

Land and Environment Court

of New South Wales

CITATION:

Taylor v Port Macquarie-Hastings Council [2010] NSWLEC 146

PARTIES:

APPLICANTS:
John Henry Taylor and Mildred Joy Taylor

RESPONDENT:
Port Macquarie-Hastings Council

FILE NUMBER(S):

30623 of 2005

CORAM:

Biscoe J

KEY ISSUES:

COSTS :- contending without notice during a costs hearing that the other party's costs are disproportionate and seeking to tender supporting evidence.

LEGISLATION CITED:

Civil Procedure Act 2005, s 60
Uniform Civil Procedure Rules, r 42.5

DATES OF HEARING:

3 August 2010

EX TEMPORE JUDGMENT DATE:

3 August 2010

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr T S Hale SC with Mr J R Dupree
SOLICITORS
Russo & Partners

RESPONDENT:
Mr T Robertson SC with Mr J Lazarus
SOLICITORS
Donovan Oates Hannaford

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

3 August 2010

30623 of 2005

JOHN TAYLOR AND ANOR v PORT MACQUARIE-HASTINGS COUNCIL

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a costs hearing. The applicants object to the respondent reading the affidavit of Mr Steven Miles, the respondent’s solicitor, of 2 August 2010 and oppose the respondent’s notice of motion to vary an interlocutory order made on 27 July 2010 to which it is said to be relevant.

On 1 July 2010 I delivered reasons for judgment in this action for compensation for the compulsory acquisition of land and reserved costs. Directions were made for evidence and submissions relating to costs and the matter was listed on 3 August 2010 for a costs hearing as well as for the making of final orders (which required statutory interest to be assessed).

2 On 27 July 2010 I heard the applicants’ notice of motion to set aside, as an abuse of process, the respondent’s notice to the applicants to produce a statement of their costs and disbursements for various periods between 2005 and 2010. Following discussion on that occasion between bench and bar, consensual orders were made that the applicants provide the respondent with statements of their costs and disbursements for specified periods and that the respondent use that information only for the purpose of formulating an offer of compromise as to costs and without prejudice to any ultimate assessment of costs by a costs assessor.

3 Late this morning, during the costs hearing, the respondent sought to read the solicitor’s affidavit to which I have referred which sets out a calculation of the council’s legal costs and disbursements in the periods referred to in the order of 27 July. The applicants objected on the ground of relevance.

4 The respondent thereupon informed me that it had been provided with the costs information the subject of the 27 July order on 29 July and recently had filed a notice of motion returnable today seeking a variation of the order of the court made on 27 July to permit the respondent to disclose that information to the Court. The respondent sought to move on the notice of motion instanter. The respondent told me that it wished to disclose that costs information to the Court in order to mount an argument that the applicant’s costs are disproportionate; and that their solicitor’s affidavit was relevant to that issue. That came as a surprise to the applicants and to me. It had not been mentioned in the respondent’s written costs submissions nor at any time before it arose through the back door in the context of the objection to the affidavit. The notice of motion could not be located in the Court file. I was provided by the respondent with an unsealed copy which I gave leave to file in Court and proceeded to hear instanter.

5 The respondent refers to s 60 of the Civil Procedure Act 2005 which provides that the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute. Of concern to the respondent is that if an order for indemnity costs is made in favour of the applicants under the rules of court by reason of the applicants’ argument that it made an unaccepted offer of compromise, then those costs may include costs which are disproportionate to the importance and complexity of the subject matter in dispute. Rule 42.5 of the Uniform Civil Procedure Rules 2005 provides that if the court determines that costs are to be paid on an indemnity basis, then “all costs (other than those that appear to have been unreasonably incurred or appear to be of an unreasonable amount) are to be allowed”.

6 The applicants submit they are prejudiced by the absence of prior notice of the disproportionality issue and are not ready to meet it. To this the respondent says that it only became aware of details of the applicants’ costs following the order of 27 July and that it had been seeking such information from an earlier time in July. The applicants submit that the order of 27 July having been made consensually for a strictly limited purpose, there is an element of unfairness about what the respondent is now seeking to do.

CONCLUSION

7 Because of the absence of notice, in fairness to the applicants the respondent’s notice of motion and the disproportionality issue cannot be dealt with on their merits today. This could have been avoided if the respondent had taken more timely steps, as I think it could.

8 However, the matter can be resolved on the basis of a concession made by the applicants during argument that if a costs order were to be made in favour of the applicants, then it would be open to the costs assessor on a costs assessment to take into account any argument by the respondent that the applicants’ costs are disproportionate. That concession having been made, there is no prejudice to the respondent in advancing such an argument on a costs assessment rather than on this occasion where lateness of notice and resultant prejudice considerations may have led either to the notice of motion being dismissed or to an adjournment before it could be determined.

9 Accordingly, I dismiss the respondent’s notice of motion of 30 July 2010 and reject the affidavit of Steven Thomas Miles of 2 August 2010.