363 Military Road Mosman Pty Ltd v The Owners Strata Plan 72814

Judgment 1HER HONOUR: Before me for hearing on 14 March 2012 was an application, by notice of motion dated 28 February 2012, by the plaintiff company (the owner of land in Mosman which it wishes to develop in accordance with a deferred development consent), for an order pursuant to sub-s 149B(2) of the Civil Procedure Act 2005 (NSW) for the transfer of these proceedings to the Land and Environment Court. 2The dispute between the parties in this Court relates to the refusal by the defendant (the Owners Corporation in respect of land adjacent to the plaintiff's land and over which the plaintiff has the benefit of a registered right of way) to consent to the removal or relocation of an intercom on the defendant's land (that being necessary to enable compliance by the plaintiff with condition 1(b) of the deferred development consent issued to the plaintiff by the Mosman Council). 3The background to the imposition of condition 1(b) to the deferred development consent is that it followed a recommendation made to the Council in relation to a traffic flow concern as to the potential impact of the proposed changed access to the plaintiff's land having regard to the presence on the right of way of an intercom facility. The concern was apparently as to the increased possibility of obstruction to the adjacent public footpath and road if more than one vehicle is queued at the intercom (awaiting access via the intercom to the defendant's secured parking facility). This being the genesis of condition 1(b) of the deferred development consent, the presence and location of the intercom then became the subject of dispute between the plaintiff and the defendant. Not surprisingly perhaps, in that context, Senior Counsel for the plaintiff, Mr Tomasetti SC, characterises the disputes that have arisen as relating to traffic engineering issues. 4It seems that the plaintiff's initial focus was on considering means by which the concerns as to the perceived obstruction to traffic flow could be met by relocation of the intercom. However, in the context of obtaining expert evidence as to the traffic flow issue, the plaintiff formed the view that the initial traffic flow concern was without foundation (and hence that the condition in question should not be imposed on the development). 5Therefore, after proceedings were commenced in this Court, the plaintiff applied to the Council for modification of the deferred development consent in order to remove condition 1(b). The Council did not rule on that application within the requisite time period and the plaintiff has since commenced Class 1 proceedings in the Land and Environment Court appealing from the deemed refusal of the Mosman Council to refuse to delete the relevant term of that development consent. The defendant is not a party to those proceedings (though, as noted by Mr Tomasetti, it would be open to it to participate as an objector in those proceedings, reference being made in this regard to Double Bay Marina v Woollahra Municipal Council (1985) 54 LGRA 313 and Lowy v The Land and Environment Court of NSW & Ors [2002] NSWCA 353). The Council is, of course, a necessary party to those proceedings (but not to the present proceedings). 6For the plaintiff it is submitted that it is in the interests of the just, quick and cheap resolution of both sets of proceedings for the present proceedings (the easement proceedings) to be transferred to and heard in the Land and Environment Court. Emphasis is placed on that regard on the fact that the Land and Environment Court is a specialist court with expertise in dealing with planning issues. Mr Tomasetti submits that it is the most appropriate forum to hear both sets of proceedings, as I understand it on the basis at least initially that there would be evidence in both sets of proceedings as to how the presence of the intercom on the defendant's land affects the right of way. 7Mr Tomasetti characterises the position of the plaintiff as the "meat" in the proverbial sandwich, in the sense that the plaintiff wishes to develop its land but cannot do so, while condition 1(b) remains operative, if the defendant refuses to provide the necessary consent to satisfy condition 1(b) of the deferred development consent. He emphasises that the plaintiff only seeks the removal (or, preferably, relocation) of the intercom because this has been required by Mosman Council as a condition of the development consent. 8The defendant resists the transfer of these proceedings on the basis, in essence, that the Land and Environment Court proceedings relate to public issues not private rights and that its determination of the issue in relation to condition 1(b) of the development consent will not be determinative of the outcome of the dispute in the easement proceedings. It maintains that it should not be forced to incur the costs of participation in the Land and Environment Court proceedings (and notes that the position that the plaintiff is now taking in each of the respective sets of proceedings in relation to traffic flow squarely contradicts the position it is taking in the other). Counsel for the defendant, Mr Henry, disputes the characterisation of the easement proceedings as a dispute relating to traffic engineering issues. 9When the matter came before me, Mr Tomasetti made a further application on behalf of the plaintiff, namely an application to review a costs order made by the Registrar Musgrave on 6 March 2012 when the matter was listed for a special fixture before me (namely, that the plaintiff pay the defendant's costs of appearing on both 13 February 2012 and 6 March 2012, including the costs of preparation and appearance on 6 March 2012). The significance of the inclusion of the costs of preparation for 6 March 2012 seems to be that on 13 February the Registrar had indicated an intention to refer the matter for hearing by the duty judge when the motion was returnable on 6 March 2012 (and the defendant had unsuccessfully pressed for this to occur on that date). Mr Henry resisted the application for a review of that decision (notice of that application not having been made in advance and he not having had an opportunity to obtain instructions and respond to the evidence then sought to be read by Mr Tomasetti on the review application). I made directions to permit the defendant a proper opportunity to respond to that evidence and to serve written submissions in relation to that aspect of the matter and have now had an opportunity to consider those. 10I deal with the respective applications as follows. Application for order transferring these proceedings 11The basis of the plaintiff's claim for relief in this Court is the allegation that the presence and use of the intercom facility on the defendant's land (which provides access to a secure underground carpark on the defendant's premises) constitutes a real and substantial interference with the reasonable use of the easement it has over the defendant's land. Paragraph 22 of the Statement of Claim filed in these proceedings on 13 September 2011 provides as follows: 22. In the premises pleaded above, each or any one or more of the following constitute a real and substantial interference with the use and enjoyment of the Easement by the Plaintiff: a. The presence of the Intercom upon the Easement and its associated intended use; b. The refusal of the Defendant to consent to the removal of the Intercom; c. The refusal of the Defendant to endorse land owner's consent upon the Application for a Complying Development Certificate provided to it by the Plaintiff; and d. The refusal of the Defendant to consent to the relocation of the Intercom including for the purposes of enabling the Plaintiff to fulfil Deferred Condition 1(b) of the Notice to Applicant of Determination of a Development Application with respect to Development Application 8.2010.152.1. 12Insofar as the sub-paragraphs (a)-(d) of [22] set out the bases on which it is alleged that there is a real and substantial interference with use of the easement, Mr Henry notes that (b)-(d) are contingent on establishing the real and substantial interference pleaded in (a) and therefore submits that the plaintiff would be granted relief in these proceedings only if it established that the presence of the intercom on the easement is a substantial interference. Mr Henry submits that his client can be required to consent to works on its land only if the plaintiff has a lawful right to require it to remove the alleged substantial interference and, to do so, the plaintiff must establish that the intercom constitutes a substantial interference with its rights in relation to the right of way (as opposed, as I understand the submission, to an interference with its use or development of its own land). 13It is in this context that Mr Henry submits that, insofar as the plaintiff maintains that the presence of the intercom will cause a difficulty if it precludes the plaintiff from being able to develop its land in accordance with the deferred development consent from the Council, the terms of the development consent are not themselves determinative of the question as to what amounts to real and substantial interference with the use of the land the subject of the right of way. 14Mr Henry submits that the difficulty for the plaintiff in having the proceedings heard together is that the position of the plaintiff in the respective proceedings is not consistent. He submits that the point of the Land and Environment Court proceedings, from the plaintiff's perspective, is directed to establishing that there is no need to move the intercom, whereas in this Court the plaintiff's case is that the intercom is a substantial interference and must be removed. 15As I understand it, although its position when these proceedings in relation to the easement were commenced was predicated on the Council's concern (as to the impact of the intercom on traffic flows if the development were to proceed) being a valid concern (though one that might be met by a relocation of the easement), what the plaintiff now wishes to contend is not that the interference in its use of the right of way lies in any traffic obstruction caused by the presence of the intercom in the right of way (as to do so would be contrary to its own expert evidence) but, rather, in the fact that (absent approval by the Council to the deletion of one of the conditions to the deferred development consent obtained by the plaintiff in respect of its own land), the defendant's refusal to consent to the removal or relocation of the intercom precludes the satisfaction by the plaintiff of the relevant condition of its deferred development consent and hence operates as a real and substantial interference with its rights in respect of the easement. 16Whether that can be established at the end of the day, I accept that logically that question will not arise if condition 1(b) of the existing deferred development consent is removed. By the same token, if the basis for the plaintiff's complaint as to interference with the use of the easement lies not in the traffic flow consequences of the development per se but simply in the fact that the presence of the intercom has caused the Council to impose a condition on the grant of development consent that cannot be met without the removal of the condition, then it is by no means apparent that there will be any need for traffic flow evidence in these proceedings. 17Section 149B of the Civil Procedure Act 2005 (NSW) provides as follows: (2) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that: (a) there are related proceedings pending in the other court, and (b) it is more appropriate for the proceedings to be heard, together with the related proceedings, in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court and heard together with the related proceedings. 18Accordingly, what must be established in the present case, before the power under sub-s 149B(2) to transfer the proceedings arises is, first, that there are "related proceedings" in the Land and Environment Court and, second, that it is more appropriate for the present proceedings to be "transferred to ... and heard together with" the related proceedings in that Court. If those matters are satisfied there remains a discretion whether or not to accede to the application for the proceedings to be transferred. 19The proceedings in the Land and Environment Court will be "related proceedings" for the purposes of s 149B if the matters with which they deal are so closely associated as to form part of the same controversy (sub-s 149A(2) of the Civil Procedure Act ). 20Mr Tomasetti submits that the present proceedings are related to the Land and Environment Court proceedings as they arise out of the one controversy, that controversy being identified as one based upon the development application made in relation to the plaintiff's land. (He points out that the development application process is generated by the Environmental Planning and Assessment Act 1979 (NSW), legislation which is within the exclusive and specialist provenance of the Land and Environment Court.) 21Mr Henry submits that the proceedings in the Land and Environment Court do not form part of the same controversy between the parties (notwithstanding that they refer in some respects to the same subject matter), a distinction being drawn between the planning aspects of the dispute between the plaintiff and the Council and the private rights the subject of the easement dispute. 22On that question, in one sense the respective proceedings clearly do relate broadly to the same controversy - namely, whether the intercom is required by Council to be removed as a condition of the development consent and, if so, whether the defendant can be forced by the plaintiff to remove it (having regard to the plaintiff's rights under the easement). They are, however, logically separate issues: the former requiring an assessment of the impact on traffic flows from a planning perspective having regard to both public and private interests and the latter requiring a determination of the nature or extent of the interference (if any) caused by the presence of the intercom on the rights of use in respect of the right of way. It is therefore only in a sequential sense that the two separate controversies seem to be linked (at least where the plaintiff is not, as it cannot on its own expert evidence, maintaining that the presence of the intercom causes an obstruction to traffic flows in the right of way at present). 23I am inclined therefore to think that the proceedings are not related in the sense of being "so closely associated" that they form part of the one controversy. However, assuming for present purposes that there is a sufficient connection or association between the two controversies (because they relate in different ways to the presence of the intercom on the right of way) the question then will be where it is more appropriate for the present proceedings to be heard. 24Insofar as there is a threshold question as to whether the transferee court has jurisdiction to determine the matter, it seems to me that the easement dispute would be seen as one ancillary to the matters the subject of the present Land and Environment Court proceedings for the purposes of s 16(1A) of the Land and Environment Court Act 1979 (NSW). (Though Mr Tomasetti submits that there is a semantic overlap between the test whether a matter is "ancillary" within the meaning of s 16(1A) of the Land and Environment Court Act and the test whether there are "related proceedings" within the meaning of sub-s 149A(2) of the Civil Procedure Act , I do not consider that a finding that the Land and Environment Court has auxiliary or ancillary jurisdiction over the easement dispute is determinative of the question whether these are related proceedings, although I accept that the converse may well be the case.) 25Mr Tomasetti submits that it is more appropriate for both proceedings to be heard (leaving aside for the moment whether they should be heard "together") in the Land and Environment Court because they fall within the Land and Environment Court's ancillary jurisdiction and because of the interdependence between the two sets of proceedings (namely, the fact that the relief sought in both proceedings is directed towards the same thing - the removal or satisfaction of condition 1(b) of the deferred development consent so as to enable the plaintiff to develop its land in accordance with that development consent). 26The only interdependence, however, seems to be that if the plaintiff is unsuccessful in the Land and Environment Court in obtaining the deletion of condition 1(b) to the deferred development consent then as a practical matter it may then be necessary for it to pursue its claims for relief in the current (easement) proceedings (to compel the removal or relocation of the intercom facility by reason of its alleged interference with the plaintiff's rights under the easement). 27It is acknowledged that if the plaintiff is successful in the Land and Environment Court proceedings then it will not be necessary for it to pursue the proceedings in this Court. (Thus it seems to me that the interdependence argument is one that favours a stay of the present proceedings but not necessarily their transfer to the Land and Environment Court.) 28While Mr Tomasetti notes that traffic engineering concerns are commonly determined by the Land and Environment Court within Class 1 of its jurisdiction and that the Land and Environment Court has specialist commissioners and judges available to it and procedures designed to enable it expeditiously to dispose of such issues (reference being made to the procedure under s 34 for orders to be made for mandatory conciliation of disputes before the Land and Environment Court), it is by no means clear (as emerged during the course of oral argument on the transfer application) that there will be (as had been submitted) a significant overlap in the factual matrix in both proceedings. 29Mr Tomasetti submits that the evidence in the Land and Environment Court proceedings will be directed to proving or disproving the basis (or need) for the imposition by Mosman Council of condition 1(b) and that the evidence in the present proceedings will be directed to "establishing the interference by the defendant with the plaintiff's rights in the easement". However, it is not clear that the plaintiff will seek to establish the latter by reference to any traffic engineering issues of the kind that (on this hypothesis) will have been determined in the proceedings before the Land and Environment Court. 30The submission in this regard was to the effect that if Mosman Council (a necessary party to the Land and Environment Court proceedings) is able to justify the imposition of condition 1(b), then the Land and Environment Court will "understand why and have determined that issue" and it will then be able to turn to consider why the defendant refuses to provide the consent necessary to move the intercom. However, the submission by Mr Henry, as I understand it, is that this misconceives the difference in the respective proceedings and that what is in issue in the present proceedings is not the question why the defendant has chosen to withhold consent but whether the defendant is entitled to do so in relation to works that the plaintiff wishes to compel be taken in relation to the defendant's own property (there being no relevance in the determination of that issue to what the public interest might be in relation to the effect of the intercom on traffic in the footpath or public road adjacent to the right of way). Why the defendant has chosen to refuse its consent to the removal or relocation of the easement may thus be said to be irrelevant to the issue whether it is obliged to do so in order to prevent a real and substantial interference with use of the right of way, the issue that will be before this Court when deciding the easement dispute. I consider that there is much force in Mr Henry's submission in that regard. 31If so, then the facts (not disputed by the defendant) that the Land and Environment Court is a superior court of record and a specialist court with its Class 1 jurisdiction adept in understanding the practical issues which surround development appeals are not material in assessing the appropriate merits of a transfer. Nor is the fact that the Land and Environment Court provides a mandatory conciliation process under s 34 of the Land and Environment Court Act 1979 to encourage the parties promptly to resolve their disputes or that proceedings in that Court are to be conducted with "as little formality and technicality, and with as much expedition" as possible (s 38 of the Land and Environment Court Act ). 32As to the fact that in the Land and Environment Court proceedings costs are ordinarily borne by each party (that Mr Tomasetti refers to as supporting the statutory objective imposed by s 56 of the Civil Procedure Act ), that seems to me to underline the concern by Mr Henry that his client should not be forced to incur costs as a party to other proceedings in which the issue to be determined in relation to the planning question is not one to which his client is a necessary party. 33That brings me to the issue as to what would be likely to happen if the proceedings are transferred. Although in written submissions served before the hearing of this application it was submitted for the plaintiff that these proceedings should be heard together in the Land and Environment Court (such that lay and expert evidence could be prepared just once and only one hearing would be necessary with evidence in one case being evidence in the other), during the course of oral argument Mr Tomasetti conceded that it may be more appropriate for the issues in the matter presently before the Land and Environment Court to be determined in advance of the hearing of the easement issues (though recognising that this would ultimately be a matter for the court to determine). 34The nub of the application to transfer the proceedings, in that sense, is the concern that if these proceedings are not transferred the parties will need to coordinate with the Land and Environment Court to ensure that the proceedings in that court are heard first (thus adverting to the appropriate sequence of the hearings) and that, meanwhile, the parties in these proceedings "face the uncertain risk of having to conduct these proceedings in this Court without the benefit of a judge who already understands the dispute". Mr Tomasetti points to the undesirability of costs being duplicated if the proceedings are to be run concurrently in different courts. 35Mr Henry submits that there are four reasons why these proceedings should not be transferred to the Land and Environment Court (some of those already having been traversed in the discussion above) but that at the core of the plaintiff's application is a misconception of what is in issue in these proceedings (as compared with what is in issue in the Land and Environment Court proceedings). 36The four reasons are that: first, the two proceedings concern different issues; second, that evidence in the two proceedings will necessarily be different; third, that there is no utility in transferring these proceedings to the Land and Environment Court; and, fourth, that a transfer would procedurally be inconvenient. 37As to the first, this turns on the proposition that the proceedings in this Court concern a dispute over private rights (the plaintiff's right to pass over a portion of the defendant's land), the issue being whether that right is substantially interfered with by the presence of this intercom. It is submitted that the only issue in the proceedings before this Court is one of fact (whether or not the presence of the intercom on the right of way constitutes a real and substantial interference with the plaintiff's private rights over a portion of the defendant's property) and that this will not turn on the terms of the ultimate development consent, rather it will turn on the plaintiff establishing as a fact that there has been real and substantial interference with its rights in respect of the easement by reason of this intercom. 38As to the second point, Mr Henry submits that the plaintiff cannot be permitted to conduct both proceedings at the same time since the evidence as to traffic flows that it now wishes to rely upon to persuade the Land and Environment Court that condition 1(b) should be deleted is conclusive against the proposition that the presence of the intercom causes an interference to traffic flows in the use by the plaintiff of the right of way and hence that if there were to be an order that evidence in one proceeding was evidence in the other the plaintiff would have to abandon the claim in this Court. (Hence, as I apprehend it, the suggestion that the defendant had made when this application was foreshadowed on 13 February 2012, that the plaintiff should file its expert evidence in these proceedings as that would inform the basis of the transfer application.) 39Mr Henry submits (and this debate is what seems to have prompted the recognition by the plaintiff that a sequential hearing might be more appropriate) that it would not be convenient to deal with the proceedings concurrently (as opposed to sequentially) in the Land and Environment Court for that reason. He further points out that s 149D(1)(b) of the Civil Procedure Act has the effect that the prima facie position is that any proceedings so transferred would be heard as one proceeding. 40In that regard, what I understood Mr Tomasetti to be saying, in effect, was that if the plaintiff fails in the Land and Environment Court proceedings then its position in the easement proceedings would be that because the presence of the intercom precludes it satisfying the condition to which the deferred development this constitutes a real and substantial interference with the plaintiff's rights under the easement. I accept that this might be said to conflate the rights of enjoyment of one's own property with the rights of enjoyment of the right of way (and that this may not be a sustainable argument) but that remains a decision for trial on the easement case, wherever that hearing may ultimately take place. What seems to me to be persuasive on the present application, however, is Mr Henry's proposition that the evidence in relation to the Land and Environment Court proceedings claim is not necessarily that which will inform the present proceedings (at least given the way that the plaintiff now seeks to put its case in the easement proceedings). 41This leads to or is part of the third reason relied upon by the defendant as resisting the transfer, namely that there is no utility in transferring the proceedings to the Land and Environment Court because the plaintiff's claim in these proceedings cannot be maintained consistently with what is put by it in the Land and Environment Court. Mr Henry submits that there is nothing in the statutory mandate under s 56 to warrant the transfer of these proceedings to another Court in circumstances where both cannot be maintained at the same time. 42In this regard, Mr Henry emphasises that in the present proceedings the plaintiff was ordered to serve its expert evidence by 18 October 2011 (a time frame proposed by the plaintiff in the first place). It has not done so. Mr Tomasetti candidly says that the plaintiff has not done so because it has been considering its position in relation to the expert traffic engineering evidence that has now demonstrated a basis to seek to have the development consent condition set aside and hence obviate the need for the present proceedings. Since October 2011, directions hearings have taken place in December 2011 and then in February and March this year. Mr Henry submits that, instead of serving its evidence, the plaintiff has elected to commence different proceedings in another Court and to leave the present proceedings in abeyance (something not in the interests of the expeditious conduct of these proceedings). 43As to the fourth reason (procedural convenience), Mr Henry says that s 34 of the Land and Environment Court Act is not to the point. He relies on what was said by the Court of Appeal in Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324, to the effect that the planning issues which are central to the Land and Environment Court proceedings are not relevant to the determination of the easement proceedings in this Court. In Sertari , the question before the Court of Appeal was as to the construction of an easement in the context of an allegation that there had been excessive user. Handley AJA noted that the trial judge had rejected evidence of a town planner's report and the terms of the development consent as being irrelevant to the construction of the grant. Handley AJA noted that the decision in Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA 45 had since confirmed that extrinsic material, apart from the physical characteristics of the tenements, is not relevant to the construction of instruments registered under the Real Property Act 1900 (referring to paras [5], [37] - [41] of the High Court's judgment in that regard). 44I am of the view that if the respective proceedings would necessarily involve the hearing of expert evidence in relation to the same traffic engineering issues, then this would be a strong factor in favour of the transfer of the proceedings (and would remove the doubt as to whether they were related proceedings). However, at present it does not appear that this will or is likely to be the case. 45I accept that it is not in the interests of the just, quick and cheap conduct of proceedings in this Court or the Land and Environment Court to permit a situation to arise where there are concurrent proceedings being run with the same or similar evidence being dealt with in both, particularly in circumstances where the easement proceedings will (from the plaintiff's perspective) become otiose if the Land and Environment Court upholds its appeal on the planning issues. 46I consider that the real force of the plaintiff's application is its concern to ensure that the proceedings are heard in the proper sequence. That concern can be met by staying the present proceedings until the outcome of the Land and Environment Court proceedings (at which time it will be known whether these proceedings have any further utility). (In its most recent submissions the defendant has indicated it would consent to such a stay and the plaintiff accepts this as its fall-back position.) 47There was a suggestion (albeit a faint one) that if the proceedings were transferred to the Land and Environment Court to await the outcome of the planning appeal and the plaintiff were to succeed in that appeal then they could then more expeditiously be disposed of in that Court. I do not find such a submission compelling. Orders disposing of the easement proceedings could be made expeditiously in either Court. 48I am not satisfied that it is more appropriate for the easement proceedings to be transferred to and heard together with the Land and Environment Court proceedings. Rather, I consider that the appropriate order is to stay the easement proceedings in this Court pending the determination of the Land and Environment Court proceedings and I will so order. (I should note that insofar as the defendant has resisted the transfer of these proceedings to the Land and Environment Court on the basis that there is no overlap in relation to the traffic engineering issue, I do not consider that it could later be heard later in this Court to make a submission that a finding by the Land and Environment Court as to the impact of the intercom on traffic flows to and from the easement was incorrect, assuming that were to be the basis for condition 1(b) remaining.) Review of the costs decision on 6 March 2012 49I turn then to the review that has been sought of the costs decision made by the Registrar on 6 March 2012. Both parties have now filed affidavits by their respective solicitors as to the circumstances in which that costs order was made. 50The order in question was that the plaintiff pay the defendant's costs of an earlier directions hearing on 13 February 2012 and the defendant's costs of the directions hearing on 6 March 2012 including the costs of preparation and appearance on that date. 51Both parties accept that the Court has power to review the Registrar's order under s 121(3) of the Supreme Court Act 1970 or r 49.19 of the Uniform Civil Procedure Rules 2005 and that, being a review of a costs order, the review relates wholly to a matter of discretion (s 98(1)(a) and (b) of the Civil Procedure Act 2005 ). 52House v R (1936) 55 CLR 499 deals with what must be established on an appeal from a decision in the exercise of the Court's discretion. Here, what is sought is a review not an appeal. In Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 Basten JA stated that a review, unlike an appeal, "does not require demonstration of error", and the defendant accepts that this is the case. However, it is also noted that similar policy considerations to those considered in House v R may make a court more or less inclined to intervene in the decision. In Lollback v Brakepower Pty Ltd [2010] NSWSC 1457 at [7] to [20], Barrett J, as his Honour then was, considered similar principles should apply on such a review and considered that even upon a review of a discretionary costs order, a court "should not" intervene except on grounds of the kind identified in House v R. Thus it is submitted by the defendant that the Court should not interfere with the Registrar's exercise of discretion in relation to the costs order except on grounds of the kind identified in House v R. 53Those considerations include whether the decision has been made acting upon a wrong principle or allowing extraneous or irrelevant matters to guide or affect the decision, mistaking the facts or not taking into account some material consideration. In House v R , their Honours noted (albeit in the context of an appeal) that it may not appear how the result embodied in an order had been reached "but, if upon the facts it is unreasonable or plainly unjust" it may be inferred that there has in some way been a failure properly to exercise the discretion. 54The chronology of the events leading up to the costs order (as to much of which there is broadly no dispute) may be summarised as follows. On 27 September 2011, the plaintiff was ordered to file and serve its lay and expert evidence in chief by 18 October 2011. No expert evidence was filed by that date (nor has any yet been filed in these proceedings). At the next directions hearing, on 14 December 2011, the plaintiff informed the Court that it had made an application to Mosman Council relating to the intercom and sought an adjournment of the proceedings until 13 February 2012. That adjournment was granted. (The solicitor for the defendant, Ms Hunt, deposes that on that occasion the Registrar said that he would not delay the further progress of the matter beyond the determination by the Council of the plaintiff's application to it.) 55On 13 February 2012, the matter came back before the Registrar. Ms Hunt deposes that the plaintiff informed the defendant and the Court on that occasion that the plaintiff had commenced proceedings in the Land and Environment Court against Mosman Council and that the plaintiff proposed to apply to have these proceedings transferred to the Land and Environment Court. A direction was made for the foreshadowed application to transfer the proceedings to the Land and Environment Court to be made returnable on 6 March 2012. It appears that the Registrar indicated that the application would be referred to the duty judge on that day (although the short minutes of order in fact made, as appearing on the Court file, refer only to the matter being listed for directions on that date). 56Annexed to Ms Hunt's affidavit is a copy of the short minutes of order handed up on 13 February on which Mr Henry had noted in handwriting the words "(and the motion is returnable on 6/3/12)". A similar notation does not appear on the short minutes initialled by the Registrar and placed on the court file, the formal orders simply giving leave for the motion to be returnable and listing the matter for directions on that date. Ms Hunt deposes that the Registrar said on that date that the transfer application would "get to the Duty Judge on that date" (ie on 6 March 2012) and that it was her impression that preparation of the matter for trial on that date had to progress. There seems no real dispute that the Register gave an indication that the matter would or might be referred to a duty judge on the day the motion was returnable. (I interpose to note, however, that once it was appreciated that the matter might take more than 2 hours, the practitioners would presumably have recognised that this would no longer be likely.) 57Also on that occasion (13 February 2012), the defendant sought a costs order against the plaintiff as well as an order that the plaintiff serve its expert evidence (on the basis that this would assist the defendant to make an informed decision about the plaintiff's transfer application). No order for the filing of the evidence was made. The Registrar reserved the question of costs. Ms Hunt deposes that the Registrar said words to the effect that the plaintiff was on notice that there would be an order for evidence on the next occasion and reserved costs to be argued on that occasion. 58Prior to the return date of the motion to transfer these proceedings, there was correspondence between the parties' solicitors (a copy of which is annexed to the affidavit of the plaintiff's solicitor). Briefly, on 28 February 2012, the plaintiff's solicitor, Mr Duffield, wrote to the defendant's solicitor seeking agreement from the defendant to a special fixture. That letter noted that Mr Tomasetti would be appearing on the transfer application and had a prior commitment. It also noted the writer's opinion that the application was unlikely to be dealt with in less than an hour. On that day, the plaintiff served the defendant with the affidavit on which it intended to rely for the transfer application (and it is submitted by Mr Tomasetti that it would have been obvious from the compendious nature of the exhibit to that affidavit that a reasonable estimation of the time likely to be required in reviewing that material in Court would have exceeded two hours). 59In response, on 1 March 2012 Ms Hunt stated that the Registrar had ordered that the plaintiffs transfer application be returnable on 6 March 2012 and that the defendant was preparing for the application in accordance with the Registrar's orders. (Ms Hunt deposed to her understanding that this was not a matter that was left open for the parties to agree otherwise. I accept that she proceeded on that basis. However, as from 28 February it must have been recognised that if the plaintiff were to be successful in seeking to have the matter specially fixed for another date then costs in the expectation of a hearing on 6 March might be to some extent unnecessarily or, perhaps more likely, prematurely incurred.) 60On 2 March 2012, Mr Duffield sought to relist the matter for directions on 5 March 2012 in order to ventilate the issue as to the hearing date. The defendant places weight on the fact that in this letter Mr Duffield acknowledged that, on 13 February 2012, the Registrar had listed the proceedings for directions on 6 March 2012 "on the basis that [the Registrar] wanted the proceedings to be referred [to the Duty Judge] on that day". Mr Duffield also noted that it was anticipated that the transfer application may take "several hours, and may therefore be unsuitable for referral, and more amenable to a special fixture". Relevantly, the response from the Registrar to that relisting application was to note that simply because a motion was returnable on a particular day, it did not mean that it would be heard on that day. 61By this stage, therefore, the defendant was on notice not only that the plaintiff's Senior Counsel was unable to attend at the hearing of the Notice of Motion if it took place on 6 March 2012 (and would be seeking to have the matter listed on another date) but also that the estimate of the plaintiff for the hearing of the application was such as to make it unlikely as a practical matter that it would be referred to the duty judge on that day. 62On 6 March 2012 the matter was again before the Registrar. On that occasion, Mr Henry appeared for the defendant and informed the Court that the defendant was ready to proceed with the hearing of the plaintiff's transfer application. He asked the Registrar to refer the application to the duty judge with an estimate was that the hearing of the application would take about two hours. Counsel for the plaintiff, Ms Cirillo, informed the Court that the plaintiff was not ready to proceed, that Senior Counsel was unavailable, requested a special fixture and estimated that the hearing of the application would take about half a day. (As it ultimately transpired the hearing before me took from about 10.30am to after 1pm.) 63The Registrar then fixed this application for hearing before me on 14 March 2012 and made the costs order now sought to be renewed. Mr Henry submits that, in the absence of a transcript, the best evidence of the Registrar's reasons for making the order is that recorded by Ms Hunt in her affidavit, namely that he said: That was my understanding that [the plaintiff's transfer application] would be referred to the Duty Judge today. 64It is submitted by Mr Tomasetti that what was not before the Registrar were the communications between the parties as to the requested special fixture. Further, he submits that the defendant has had the benefit of the preparation that it conducted in anticipation of hearing the Notice of Motion on 6 March 2012 for the actual hearing of the Notice of Motion on 14 March 2012. 65Mr Henry submits that the evidence does not demonstrate a House v R kind of error in relation to the costs order; rather, that the evidence discloses that the Registrar made the costs order because the plaintiff was not in a position to proceed with the hearing of its application on the day upon which the application was to be referred to a judge for hearing. It is submitted that this was within the Registrar's discretion and an entirely orthodox outcome. (In that regard, it is true that the plaintiff did not wish to proceed due to the unavailability of Senior Counsel but it also considered, as was proven correct, that the hearing would take longer than was appropriate for referral to the duty judge on that day.) 66It is further submitted by Mr Henry that the Registrar's costs order is justified having regard to the delay in the progress of the matter (and the plaintiff's then ongoing breach of the order that it file its expert evidence by 18 October 2011). It is submitted that the defendant has prepared for and appeared at each of the directions hearings, the expense associated with which having been wasted. 67Mr Tomasetti candidly acknowledges the default in service of the plaintiff's expert evidence and the delay in preparation of the case, which he explains by reference to the dilemma in which the plaintiff was placed and the decision to take steps to have condition 1(b) removed from the deferred development consent. However, Mr Henry submits that it is no answer for the plaintiff to say that (whilst the defendant was incurring these and other costs defending the proceedings) it was reconsidering its position in relation to the Land and Environment court proceedings since, having chosen to sue the defendant in these proceedings, it is bound to comply with Court orders and to prosecute the proceedings diligently (there referring to sub-ss 56(3) and (4) of the Civil Procedure Act 2005 ). It is submitted that the fact that the plaintiff has repeatedly failed in this regard may be taken into account by the Court in the exercise of its costs discretion (sub-s 56(5) of the Act). (I note that in the correspondence between the solicitors it was squarely put to the plaintiff that if it did not wish to pursue these proceedings it should discontinue them. What the plaintiff in effect has done since late 2011 has been to leave both irons in the fire, so to speak.) 68Mr Tomasetti submits that the costs order is plainly unjust or unreasonable upon the facts since the Registrar did not have the correspondence contained in the exhibit to Mr Duffield's affidavit before him. With respect, that correspondence could presumably have been put to the Registrar and what that correspondence highlights is a somewhat unedifying dispute as to when the application should be heard. In that regard, I am inclined to think that neither side has been covered in glory. That said, in circumstances where the Registrars in this Court have considerable experience in case management and seek to ensure that matters are prepared expeditiously for hearing, it does not seem to me that I can conclude that the costs order is plainly unjust or unreasonable in the overall management of the proceedings. It would surely have been open to the Registrar to have concluded, for example, that, while the plaintiff might have the benefit of further time to prepare the application for a transfer to the Land and Environment Court without being forced to serve evidence that might ultimately be otiose in these proceedings, the defendant should not be in a position where it was incurring costs at directions hearings in an attempt to obtain compliance with the orders that had already been made. That might well explain the 13 February costs order. (Although Mr Tomasetti maintains that the directions hearing, regardless of what occurred during that hearing, or the progress of the plaintiff's preparation of its evidence, had been listed that day for the ongoing directions of the matter in any event, the effect of what occurred was to require at least one other directions hearing that might not otherwise have been necessary). 69As to the costs of the 6 March attendance (and, in particular, the extension of the order to the costs of preparation and appearance on that date, presumably on the basis that it was anticipated that there would be a hearing on that date), it is submitted that (as is the case) just because a Notice of Motion is returnable on a certain day, it does not mean that it will be heard on that day. However, it cannot be suggested that it was inappropriate for the defendant to prepare for the motion as if it were to be heard on 6 March 2012 at least up to the point at which it would have become obvious that the referral to the duty judge was unlikely (and even then it would have been prudent to prepare against that eventuality, as presumably the plaintiff also did). I can see the force of the criticism that there was little or no co-operation as to the listing of the matter for special fixture. That seems to be explained by the defendant's understanding that the matter had a promised or foreshadowed hearing on that date and, I assume, its desire to hold onto that fixture (perhaps contributed to by the dissatisfaction occasioned by the delays in filing of the expert evidence from which it might have been in a position to consider more fully the transfer application - certainly the filing of such evidence would seem to have highlighted the inconsistency between the two cases now apparently being maintained in relation to the intercom.) Mr Tomasetti fairly concedes that Counsel's availability is not ordinarily the determinative factor as to whether matters are referred to the duty judge or for special fixture. 70It is submitted by Mr Tomasetti that it was the defendant's refusal to cooperate with the plaintiff to find an agreed date for a special fixture and failure to notify the plaintiff of its intention to press for a hearing of the Notice of Motion on 6 March 2012 that caused the parties to have to appear at the 6 March 2012 listing (instead of allowing the Registrar to list the matter by consent in chambers) and to incur the expense of that hearing and that this was inconsistent with the 'just, quick and cheap' mandate. There is, however, an element of responsibility that the plaintiff must also bear for that outcome. If availability of Senior Counsel was likely to be an issue, there seems no reason why that could not have been ventilated before the Registrar on 13 February when the 6 March date was set. 71In all the circumstances I am not persuaded that the costs orders were plainly unjust or unreasonable nor were they outside the discretion of the Registrar. Whether or not I would have made them is not to the point. The correspondence to which the Registrar was not taken sheds light on the unhelpful stance of the defendant (and the fact that it was on notice that the application might not proceed to be heard on 6 March 2012) but does not in my view preclude the Registrar having still reached the view that he did in respect of the costs orders sought. 72The costs order in relation to the directions hearing on 13 February 2012 was one that the Registrar was plainly in a position to make, knowing the background to the preparation of the matter to that point. As to the costs ordered in respect of 6 March 2012, my only doubt is as to whether it was unreasonable to include the costs of preparation for that hearing if that preparation would have been relied upon in any event for the special fixture of 14 March 2012. However, in my view, properly construed, the Registrar's orders in effect mean that the plaintiff should bear preparation costs thrown away by the necessity to fix the matter for a special hearing (ie costs that were inevitably duplicated by the matter going over to 14 March 2012). Preparation time that would otherwise have been required in any event for 14 March 2012 and has not been duplicated should not fall within the orders so made. 73On that basis, on my review of the Registrar's decision I do not consider it appropriate to do more than to clarify those orders as above. I refuse the application to set aside the orders that have been made. I will nevertheless take those orders into account when considering the costs of the application before me, as to which I will hear submissions when I publish these reasons. Conclusion 74For the reasons set out above, I make the following orders: 1.The application for a transfer of these proceedings to the Land and Environment Court is refused. 2.These proceedings be stayed pending the outcome of the existing proceedings in the Land and Environment Court between the plaintiff and the Mosman Council in relation to the appeal from the Council's deemed refusal of the application to delete condition 1(b) from the deferred development consent. 3.The application for the setting aside of the costs order made by the Registrar on 6 March 2012 is dismissed. 75I will hear submissions on the costs of the application before me.