Vilro Pty Ltd v Roads and Traffic Authority of NSW (No 2)
[2010] NSWLEC 145
•6 August 2010
Land and Environment Court
of New South Wales
CITATION: Vilro Pty Ltd v Roads and Traffic Authority of NSW (No 2) [2010] NSWLEC 145 PARTIES: APPLICANT
RESPONDENT
Vilro Pty Ltd (ACN 000 560 387) (in voluntary liquidation)
Roads and Traffic Authority of NSWFILE NUMBER(S): 30369 of 2009 CORAM: Pepper J KEY ISSUES: PRACTICE AND PROCEDURE :- setting aside of costs order - costs order made pursuant to incorrect power - costs order remade pursuant to correct power LEGISLATION CITED: Civil Procedure Act 2005 s 98
Land Acquisition (Just Terms Compensation) Act 1991
Land and Environment Court Rules 2007 r 3.7(2)
Uniform Civil Procedure Rules 2005 rr 36.15, 36.16CASES CITED: Short v Crawley (No 42) [2009] NSWSC 1110
Torrac Nominees Pty Ltd v Karabay; UWS Macarthur Sports and Recreation Association Inc v Karabay [2007] NSWCA 96; (2007) 69 NSWLR 669
Vilro Pty Ltd v Roads and Traffic Authority of NSW [2010] NSWLEC 141
Wilkshire & Coffey v Commonwealth (1976) 9 ALR 325DATES OF HEARING: 6 August 2010 EX TEMPORE JUDGMENT DATE: 6 August 2010 LEGAL REPRESENTATIVES: APPLICANT
Mr L Walker (solicitor)
SOLICITORS
Minter Ellison LawyersRESPONDENT
Ms G Li (solicitor)
SOLICITORS
Blake Dawson
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESPEPPER J
6 August 2010
30369 of 2009 Vilro Pty Ltd v Roads and Traffic Authority of NSW (No 2)
EX TEMPORE JUDGMENT
Introduction
1 HER HONOUR: In Vilro Pty Ltd v Roads and Traffic Authority of NSW [2010] NSWLEC 141 (at [39]-[47]) (“the first Vilro decision”) I ordered that Vilro Pty Ltd (“Vilro”) pay the Roads and Traffic Authority of NSW’s (“the RTA”) costs of a motion to vacate the hearing dates in the proceedings which was withdrawn by Vilro on the day that judgment on the motion was due to be delivered. The costs order was sought by the RTA and opposed by Vilro.
2 The order was made pursuant to r 3.7(2) of the Land and Environment Court Rules 2007 (“the Rules”). This was in error.
3 Rule 3.7(2) of the Rules only applies to the proceedings in Class 3 of the Court’s jurisdiction listed in r 3.7(1)(c). The proceedings listed in that sub-rule do not include claims made under the Land Acquisition (Just Terms Compensation) Act 1991. The proceedings are such a claim.
4 Accordingly, it is necessary for me to either vary the reasons for making, or alternatively set aside, the costs order. It is regrettable that during the course of the discussion as to whether or not it was fair and reasonable in the circumstances that Vilro pay the RTA’s costs of the motion, neither party sought to bring the error to the Court’s attention (it should be noted that prior to any discussion concerning costs Mr Tomasetti SC had been excused in order to appear in another matter). However, the unfortunate fact remains that r 3.7(2) of the Rules was incorrectly relied upon by the Court as the source of power to order costs against Vilro.
Correct Legislative Framework
5 The Court’s power to order costs is in fact contained in s 98 of the Civil Procedure Act 2005 (“CPA”). That section relevantly provides:
(1) Subject to rules of court and to this or any other Act:98 Courts powers as to costs
- (a) costs are in the discretion of the court, and
(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.
6 Section 98 of the CPA confers a broader discretion on the Court to order costs than that conferred by r 3.7(2) of the Rules.
Power of the Court to Vary Reasons or Set Aside Orders
7 Rule 36.15(1) of the Uniform Civil Procedure Rules 2005 (“UCPR”) states as follows:
(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.36.15 General power to set aside judgment or order
8 In my opinion, a costs order made pursuant to an incorrect power to do so is an order that was made “irregularly”.
9 Rule 36.16 of the UCPR sets out further powers to set aside or vary a judgment or order. In particular sub-r (3) and (3B) relevantly provide:
36.16 Further power to set aside or vary judgment or order
(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it:…
- (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or
(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.
(3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.
…
10 However in the present instance the judgment or order has not been entered and because, in my view, the setting aside or variation of the judgment or order arises on a claim for relief, namely, a claim for costs, neither of these sub-rules are applicable.
11 A general power also exists for a court to set aside or vary interlocutory orders in the appropriate circumstances where they involve matters of practice and procedure (Wilkshire & Coffey v Commonwealth (1976) 9 ALR 325 at 330 cited in Torrac Nominees Pty Ltd v Karabay; UWS Macarthur Sports and Recreation Association Inc v Karabay (2007) 69 NSWLR 669 at [50] and Short v Crawley (No 42) [2009] NSWSC 1110 at [48]).
12 Because an alternate source of power exists to support the making of the costs order in the first Vilro decision (s 98 of the CPA), the extent to which the order is required to be varied, or set aside and remade, is unclear.
13 However, and if for no other reason than that of an abundance of caution, I am of the view that the preferable course of action is to set aside the costs order made on 4 August 2010 in the first Vilro decision and instead order that pursuant to s 98 of the CPA Vilro pay the RTA’s costs of the motion.
14 In so doing I rely either on the general power contained in r 36.15(1) of the UCPR, or in the alternative, the general principle that interlocutory orders may be varied or set aside in appropriate circumstances where they involve matters of practice and procedure.
Vilro to Pay the RTA’s Costs
15 In the circumstances, and again as a matter of prudence, the parties were invited to make any additional submissions they wished on the question of costs. No further submissions in addition to those relied upon in the first Vilro decision were made.
16 Accordingly, and given the reasons expressed in the first Vilro decision, I remain of the view that it is appropriate that Vilro pay the RTA’s costs of the motion.
Order
17 The Court orders that the order made on 4 August 2010 that Vilro pay the RTA’s costs of the motion be set aside insofar as that order was made pursuant to r 3.7(2) of the Land and Environment Court Rules and instead orders that Vilro pay the RTA’s costs of the motion pursuant to s 98 of the Civil Procedure Act.
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