Wentworth Park Sporting Complex Trust v Leichhardt Council

[2004] NSWLEC 776

Land and Environment Court

of New South Wales

CITATION:	Wentworth Park Sporting Complex Trust v Leichhardt Council [2004] NSWLEC 776
PARTIES:	APPLICANT: Wentworth Park Sporting Complex Trust RESPONDENT: Leichhardt Council
FILE NUMBER(S):	30077 of 2001
CORAM:	Bignold J
KEY ISSUES:	Costs :- Whether the costs incurred as a result of adjournment caused by the ultimately successful party should be excluded from costs order
LEGISLATION CITED:	Local Government Act 1919, s 555(1)(a)
CASES CITED:	Wentworth Park Sporting Complex Trust v Leichhardt Council 122 LGERA 271; Maclean Shire Council v Nungera Co operative Society Ltd 86 LGERA 430; Council of the City of Sydney v Garbett Pty Limited
DATES OF HEARING:	03/02/2004
EX TEMPORE JUDGMENT DATE :	02/03/2004
LEGAL REPRESENTATIVES:	APPLICANT: S Kerr SOLICITORS Manion McCosker RESPONDENT: T Robertson SC SOLICITORS Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

3 February 2004

30077 of 2001 WENTWORTH PARK SPORTING COMPLEX TRUST v LEICHHARDT COUNCIL

JUDGMENT

1. HIS HONOUR: This is an application for costs in Class 3 proceedings involving a claim to exemption from rates under the Local Government Act 1993 upon the grounds that the land was vested in a trustee under the Crown Lands Act. In the event the proceedings failed and I determined that the land was not exempt from rates under the Local Government Act 1993, s 555(1)(a) as had been claimed by the Applicant. The appeal was dismissed. The question of costs was reserved. The Applicant appealed to the Court of Appeal and that appeal was dismissed with costs.

2. The issues raised in the proceedings before me were two—whether the land was relevantly owned by the Crown and secondly, whether it was held under lease for private purposes. When the case opened, the issue raised was confined to the first question, however on the first day of the hearing (the case was only listed for the one day), the Council through its Senior Counsel withdrew an earlier concession made to Counsel for the Applicant and raised the question whether the subject land was relevantly land not held under lease for private purposes.

3. The hearing was adjourned early in the afternoon on the first day and as I say in my reasons for judgment reported in volume 122 LGERA 271 at 275, the adjournment was necessitated by the withdrawal of that concession in order—and I am reading par 10 of the judgment—“for the parties to prepare their respective cases on the question of whether the subject land was relevantly land not held under a lease for private purposes within the meaning of the statutory exemption” provided by the section of the Local Government Act that I have cited.

4. The result was that, as recorded in par 11, the Court was required to adjudicate on two questions raised by the Local Government Act, s555(1)(a)— firstly, whether the subject land was relevantly land owned by the Crown and secondly, if so whether the subject land was not held under a lease for private purposes. As I indicated, both issues that were raised before me were resolved in favour of the Council. I concluded that the subject land was not relevantly owned by the Crown and that it was land held under lease for private purposes.

5. The Court has a discretion in relation to costs and it is a broad discretion. However in cases of this type, that is concerning rate exemption, the usual approach to the question of costs is that costs will follow the event. This is particularly the case since the decision of the Court of Appeal in Maclean Shire Council v NungeraCo-operative Society Ltd 86 LGERA 430 where the Court of Appeal reversed an order that there be no costs in a rate exemption case made by the trial judge Bannon J in this Court. Handley JA in giving the judgment for the Court of Appeal concluded that it was this type of case where costs ought to follow the event and it was not a case that fell within the compass of the Court’s Practice Direction.

6. Another example of costs being awarded in a rate exemption case is provided by the decision of the Court of Appeal in the Council of the City of Sydney v Garbett Pty Limited, an unreported decision of the Court of Appeal in which reference was made to the reported decision of the Court of Appeal in the Maclean Shire Council case.

7. Accordingly, but for the question of whether the costs following the event should include the costs incurred consequent upon the adjournment, I am of the opinion that in this case the principle to be followed in exercising a discretion on costs is that costs should follow the event and that the Council, having been successful on the two issues ultimately raised for decision in this Court on the claim to rate exemption, should have its costs conformably to that principle and the decided cases in this Court.

8. The only question in doubt is whether the costs order to be made in favour of the successful party should exclude any aspect of the costs incurred as a result of the adjournment which arose in the circumstances to which I have earlier referred and in respect of which I made reference to what I said in my reasons for judgment in that case. Although it is no doubt the case that the withdrawal of a concession meant that the issues raised in this Court were expanded to include the issue of whether or not the subject land was land which was not held under a lease for private purpose, thereby changing the tack of the case, it is nonetheless important to realise that the statutory exemption provided by the Local Government Act encompassed both issues which were raised in the hearing before me and I am of the opinion that no misconduct in the litigation occurred as a result of the Council raising that issue concerning whether or not the land was not held by lease for private purposes, it being an integral aspect of the basis for exemption.

9. Of course, it is open to parties involved in any application of statutory provisions to agree between themselves that some aspects or a part aspect of a statutory provision is not in dispute. That happens all the time in all manner of cases that come before the courts. However, in a case where the statutory exemption was based on a twofold basis, I do not think that any criticism can be made of the Council for raising the issue, albeit belatedly, particularly having regard to the pre-litigation communications between the parties’ Solicitors.

10. In the result, when the case resumed before me on the second day after a sizeable period of adjournment, little was said by the parties on the second issue as to whether the land was land not held under lease for private purposes. The relevant evidence in relation to the tenurial lease and licensing arrangements for the subject land having been led in the affidavit and documentary evidence admitted into evidence on the first day and perhaps because the matter was so obvious and beyond debate, the Applicant contented itself with what, if I may say so, rose no higher than a formal submission that the land was relevantly not held under lease for private purposes (a submission which I rejected) and which, on the facts and on the undisputed evidence, was simply not open.

11. Accordingly, upon the resumption of the case most attention was redirected to the question of whether the land was relevantly owned by the Crown, that being the only issue said to be in dispute when the case commenced.

12. In these circumstances, I am of the opinion that the adjournment, though unfortunately necessary, did not in fact lead to the incurring of any additional unreasonable expenses and for that reason there is no justification in excluding from a costs order to which the Council is entitled as the victor in the litigation (being victorious on both issues ultimately raised in this Court) any part of their costs.

13. Accordingly, for all the foregoing reasons, I order the Applicant to pay the Council’s costs in the proceedings in the sum agreed, or failing agreement, as assessed.

ROBERTSON: That will include the costs of this motion, won’t it, your Honour?

HIS HONOUR: Yes.

ROBERTSON: Thank you, your Honour