Warringah Shire Council v Koala-Ty Pizza Pty Ltd

[1988] NSWLEC 25

Land and Environment Court

of New South Wales

CITATION:	Warringah Shire Council v Koala-Ty Pizza Pty Ltd [1988] NSWLEC 25
PARTIES:	APPLICANT Warringah Shire Council RESPONDENT Koala-Ty Pizza Pty Ltd
FILE NUMBER(S):	40185 of 1987
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Warringah Local Environmental Plan 1985
CASES CITED:	Hedley v. National Commercial Banking Corp. of Australia (1986) Donald Campbell & Co. Ltd. v. Pollak (1927); F. King & Co. v. Gillard & Co. (1905); Edmund v. Martell (1907); Ritter v. Godfrey (1920); Sunday Times Newspaper Co. Ltd. v. McIntosh (1933); Redden v. Chapman (1949)
DATES OF HEARING:
DATE OF JUDGMENT:	10/06/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: On 21st June, 1988 I delivered Judgment dismissing an application for declaration and injunction brought in class 4 proceedings. I reserved the question of costs.

The successful Respondent now seeks an order for costs which is opposed by the Applicant on the ground that special circumstances exist which operate to disentitle the successful Respondent to an order for its full costs. It submits that it is entitled only to a reasonable portion of its costs.

The special circumstances claimed by the Applicant refer to the fact that at the hearing (which occupied two days) Counsel for the Respondent in his final address translated a submission based upon the effect of the Warringah Local Environmental Plan 1985 which came into force subsequent to the date of the grant of the relevant development consent (the conditions of which the Applicant in the class 4 proceedings was seeking to enforce) from a submission merely bearing upon the exercise of judicial discretion whether to grant the relief sought into a submission having the legal effect of completely barring the Applicant's entitlement to the relief sought. In my Judgment I adopted the Respondent's submission. Notwithstanding that decision (which would have been sufficient in itself to dispose of the proceedings in favour of the Respondent) I went on to consider the true meaning of the disputed condition of development consent and concluded that the meaning contended for by the Respondent was the true legal effe

ct of the condition. It was on account of each of these holdings that I dismissed the application.

The Applicant now submits that the Respondent should have raised at an earlier stage in the proceedings the defence (based upon the legal effect of the subsequently enacted local environmental plan) and that if it had done so costs in the litigation (eg those referable to disputed facts) could have been avoided. I am unable to accept this submission.

The nature of circumstances justifying a departure from the general rule under S.C.R. Pt.52 r.11 that costs follow the event is described in the following extract from the Judgment of McHugh J.A. in giving the Judgment of the Court of Appeal in Hedley v. National Commercial Banking Corp. of Australia (unreported 31st October, 1986):-

"However, a departure from the general rule can only be made when the evidence justifies the exercise of the discretion against the successful party: Donald Campbell & Co. Ltd. v. Pollak (1927) AC 732 at 811-812. The Court cannot deprive a successful party of his costs on grounds unconnected with the cause of action: ibid at 811-812, 813, 825. Thus a misrepresentation by a successful defendant unconnected with the case is not a ground for depriving him of costs: F. King & Co. v. Gillard & Co. (1905) 2 Ch 7. Nor is it enough that the successful party should have acted with more courtesy and consideration: Edmund v. Martell (1907) 24 TLR 25. Before a successful party is deprived of his costs it will generally be necessary that he was guilty of conduct which improperly induces the losing party to think that he had a good cause of action or defence or which has occasioned unnecessary litigation or expense in the institution or conduct of the proceedings: Ritter v. Godfrey (1920) 2 KB 47 at 53, 60, 66; Sunday Time

s Newspaper Co. Ltd. v. McIntosh (1933) 33 SR (NSW) 371 at 377; Redden v. Chapman (1949) 50 SR (NSW) 24 at 25."

In making an appraisal of the Respondent's conduct in this litigation the following matters are relevant --

(i) The class 4 proceedings were conducted without the benefit of any pleadings. Hence there can be no question here (as there was in Hedley) of a party failing to plead the winning point;

(ii) By raising the successful point (including its translation in the course of argument into a more legal formidable point) in his final address Counsel for the Respondent did not in any real way extend the hearing of the proceedings;

(iii) The Applicant did not concede the point once it had been raised in final submissions; but vigorously argued against it;

(iv)The Respondent succeeded on the question of construction of the disputed condition (which success would have been sufficient in itself to conclude the proceedings in its favour).

Accordingly in my opinion it cannot be fairly said that the Respondent has been guilty of any conduct in the litigation which would operate to disentitle it to an order for its costs reflecting the general rule in class 4 proceedings in this Court that costs follow the event on the same basis as is expounded in Hedley. In particular it cannot be said of the Respondent's failure to raise the point at an earlier stage of the litigation that its conduct had improperly induced the losing party to think that it had a good cause of action or had occasioned unnecessary litigation or expense in the conduct of the proceedings. As I have stated the Applicant vigorously argued against the point raised by the Respondent in its final address. In these circumstances it is not probable that even if the point had been raised at an earlier stage in the litigation the Applicant would have yielded to it.

Accordingly I order that the Applicant pay the Respondent's costs of the proceedings.