Vigor Master Pty Limited v Warringah Council (No 2 ) - [2005] NSWLEC 255

Land and Environment Court

of New South Wales

CITATION:
Vigor Master Pty Limited v Warringah Council (No 2 ) [2005] NSWLEC 255

PARTIES:
APPLICANT:
Vigor Master Pty Limited
RESPONDENT:
Warringah Council

FILE NUMBER(S):
11009 of 2004

CORAM:
Watts C at 1

KEY ISSUES:
Costs :-

LEGISLATION CITED:
Warringah Local Environmental Plan 2000, (WLEP2000) - Land and Environment Court Act 1979 s 69

CASES CITED:
Maxwell and anor v Warringah Council [2005] NSWLEC 90 - Vigor Master Pty Limited v Warringah Council [2004] NSWLEC 162

DATES OF HEARING: 9/05/2005

DATE OF JUDGMENT:

05/19/2005

LEGAL REPRESENTATIVES:
APPLICANT:
Mr Henry Yu in person with Mr Jian Zhong Liu, and Ms Xue Qin Wang
SOLICITORS:
N/A
RESPONDENT:
Mr N D Howie, solicitor
SOLICITORS:
Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

19 May 2005

11009 of 2004 – Vigor Master Pty Limited v Warringah Council

JUDGMENT

1 Commissioner: On 11 February 2005, I gave judgment in favour of the council decision on the merits of this application.

2 Mr Howie, solicitor for the council, has now made an oral application for costs based on the council’s notice of motion filed 21 March 2005.

3 The respondent’s primary claim is that it seeks an order that the applicant pay the council's costs with respect to the housing density issue (Issues 1, 2 and 3) from 14 January 2005 when the Court-appointed planning expert gave an oral report to both parties.

4 The council also sought a specific order that the applicant pay the council's costs with respect to the applicant's notice of motion filed 19 January 2005, which sought:

· to vacate the hearing dates 27/28 January 2005;

· to extend time for the filing of the applicant's expert reports; and

· a separate and preliminary hearing on so called questions of law relating to the housing density issue.

5 The council also sought a specific order that the applicant pay part of the respondent's share of the fees of the Court-appointed expert Mr M E Neustein of Neustein Rosenberg Partnership.

6 The question for the Court is whether, in the exercise of its discretion under s 69(2) of the Land and Environment Court Act 1979, the Court should find that, in the circumstances of this particular case, it is fair and reasonable that the applicant should pay the council's costs from the date when the Court-appointed planning expert Mr Neustein gave to the parties his oral report on 14 January 2005.

7 The Court’s discretion to order costs lies with s 69 of the Land and Environment Court Act 1979, that relevantly provides:

Subject to the Rules and subject to any other Act:

A Commissioner or Commissioners may not make an order under this section except with the concurrence of the Chief Judge.

8 Part 16, Rule 4, of the Court’s rules relevantly provides:

This rule applies to the following proceedings in Classes 1, 2 and 3 of the Court's jurisdiction:

Environmental Planning and…

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: [2005] NSWLEC 255
Decision Date: 05/19/2005

CaseChat Overview and Summary

In the matter of Vigor Master Pty Limited v Warringah Council, the Land and Environment Court of New South Wales considered a costs application made by Warringah Council against Vigor Master Pty Limited. The primary dispute centered around the costs incurred by Warringah Council in relation to a housing density issue, following a detailed explanation given by a court-appointed expert on January 14, 2005. Warringah Council sought an order for Vigor Master to pay its costs from that date, arguing that the applicant unreasonably and unfairly contested the issue. The court also considered additional costs incurred due to a notice of motion filed by Vigor Master and the reopening of the case.

The court evaluated the submissions from both parties and concluded that while Vigor Master had the right to pursue its appeal, it unreasonably prolonged the proceedings. The court found that Vigor Master's actions, such as maintaining a scattergun approach with misconceived points, seeking to undermine the basis for the court-appointed expert's opinion, and reopening the case without additional basis, were unreasonable and unfair. Consequently, the court decided that it was fair and reasonable for Vigor Master to pay part of the council's costs from January 14, 2005. The court proposed an order for Vigor Master to pay $14,935 to Warringah Council, which included costs related to the housing density issue, the notice of motion, the reopening of the hearing, and the costs hearing itself. The decision emphasized that the applicant's unreasonable conduct had led to unnecessary costs for the respondent.

Orders