Carriage v Stockland

Land and Environment Court (NSW)|2002-07-19|Before: Talbot J

The applicant is impecunious. He has not shown that an order would stultify the proceedings except to the extent that he has no personal property to meet it. The applicant's case is merely arguable and does not have a reasonable prospect of success. Although I have readily accepted the bona fide nature of the applicant's claim, this does not mean that it discloses a reasonable chance of success. I have already found, for other purposes, that it does not. It does not have a reasonable prospect of success beyond being arguable (Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd and Others (1995) 56 FCR 189 at 197).

It is plainly wrong, as Steain JA said, and with whom Heydon JA agreed, in Melville , to equate an application for costs, after the conclusion of a full hearing and an application for security for costs, that must be dealt with when the ultimate outcome could not be known.

In Town Watch Incorporated v Grafton City Council and Westlawn Investment Company Ltd (1997) 93 LGERA 401 at 405 the Chief Judge of this Court appears to have accepted that, where proceedings are not shown to have been brought in the public interest, the mere fact the proceedings seek to remedy an alleged breach of a statute pursuant to an open standing provision is not of itself sufficient to refuse to grant security for costs although, nevertheless, the orders of the Court should be moulded to ensure the opportunity to remedy or restrain a breach is not unjustifiably impeded.

There is no issue that the motion seeking an order that the applicant give security for costs was made promptly. It was filed immediately following the joinder of the present applicant. An earlier, then extant, notice of motion seeking security from a previous applicant was withdrawn.

Having regard to the identified inherent weakness in the applicant's case, there is a strong argument to support the making of an order requiring the applicant to give security for at least part of the costs of the future conduct of the proceedings. The impecuniosity of the applicant is not a decisive matter but is a matter the Court must take into account in the exercise of its discretion whether to make the order. Notwithstanding the concession made by Mr Wilcher in the witness box to the contrary and submissions made by Mr Oshlack, it has not been proved to a sufficient level to satisfy the Court, at this stage, that the applicant will not be able to proceed with further litigation if security is required. Mr Carriage is not the only person who has the same level of interest in the outcome of the proceedings. His evidence is that he represents an assemblage of interests. The first respondent has already incurred costs in the conduct of two contested hearings and has been successful on both occasions. It does not seek security for payment of the accrued costs. No order as to costs has been made to date.

The notice of motion seeks an order for security for costs in an amount of $85,000. The evidence of Mr Wilcher seeks to justify an estimate for total fees and disbursements at the figure of $71,600, excluding some minor disbursements and the prospect of senior council's fees.

In the Court's view, therefore, having regard to the whole of the circumstances, the present applicant should, at this stage of the proceedings, provide some security for costs to be incurred by the first respondent. The order will be for an amount which the Court accepts as presently reasonable and will ensure payment of at least a significant proportion of the party and party costs. This amount is the sum of $25,000.

The final orders of the Court are as follows:- (1) That, within 14 days of the order, the applicant provide security for costs to the first respondent in respect of the costs from the date of this order up to and including the conclusion of the hearing of the matter in the amount of $25,000.

(2) That the proceedings be stayed until security for costs has been provided.

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CITATION : Carriage v Stockland (Constructors) Pty Limited and Another (No 2) [2002] NSWLEC 121 APPLICANT Allan Carriage

SECOND RESPONDENT Director-General National Parks and Wildlife Service FILE NUMBER(S) : 0301 of 2002 CORAM: Talbot J KEY ISSUES: Costs :- security for costs Practice and Procedure:- security for costs Environmental Planning and Assessment Act 1979 s 123(1) LEGISLATION CITED: Land and Environment Court Act 1979 s 69(3), s 69(4), s 69(5), s 69(6) National Parks and Wildlife Act 1974 s 176A ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67; KP Cable Investments Pty Ltd v Meltglow Pty Ltd and Others (1995) 56 FCR 189; Melville v Craig Nowlan & Associates Pty Ltd & Anor [2002] NSWCA 32, unreported; CASES CITED: Oshlack v Richmond River Council (1998) 193 CLR 72; Rowley v New South Wales Leather and Trading Co. Pty Ltd and Woollahra Municipal Council (1980) 46 LGRA 250; Town Watch Incorporated v Grafton City Council and Westlawn Investment Company Ltd (1997) 93 LGERA 401; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 DATES OF HEARING: 10/07/2002, 11/07/2002 DATE OF JUDGMENT: 07/19/2002

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