City of Canada Bay Council v Bonaccorso Pty Ltd

Court of Appeal (NSW)|2008-04-10|Before: Mason P, Tobias JA, Young CJ, Biscoe J

CITATION: City of Canada Bay Council v Bonaccorso Pty Ltd (No 3) [2008] NSWCA 57

JUDGMENT OF: Mason P; Tobias JA; Young CJ in Eq

(a) Set aside Order (d) made in the substantive judgment of this court on 10 December 2007; (b) Remit to the Land and Environment Court the issue as to the costs of the hearing at first instance before that Court to be determined in light of the reasons and orders of this Court given and made on 10 December 2007; DECISION: (c) The appellant to pay the first respondent's costs of the appeal so far as they relate to para 1 of the appellant's Amended Notice of Appeal with Appointment filed on 26 September 2007; (d) The first respondent to pay the remainder of the appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified; (e) The third, fourth and fifth respondents to pay their own costs of the appeal; (f) The appellant to pay the first respondent's costs of the Notice of Motion filed for the first respondent on 17 December 2007.

CATCHWORDS: Costs - Whether costs order made in substantive judgment should be varied - Whether there were exceptional circumstances which justified re-opening of costs issue - Whether costs should follow result of appeal - Whether issues argued on appeal were separable so as to justify special costs order.

Local Government Act 1993 (NSW) Real Property Act 1900 (NSW) LEGISLATION CITED: Suitors' Fund Act 1951 (NSW) Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 City of Canada Bay Council v F&D Bonaccorso Pty Ltd & Ors [2007] NSWCA 351 De L v Director-General, New South Wales Department of Community Services (1997) 190 CLR 207 Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 CASES CITED: F&D Bonaccorso Pty Ltd v Canada Bay City Council (No.3) [2007] NSWLEC 569 Grygiel v Baine & Ors (No 2) [2005] NSWCA 434 James v Surf Road Nominees Pty Ltd (No. 2) [2005] NSWCA 296 Multiplex Constructions Pty Ltd v Irving [2005] NSWCA 1 Roads & Traffic Authority (NSW) v McGregor (No 2) [2005] NSWCA 453

City of Canada Bay Council F&D Bonaccorso Pty Ltd PARTIES: Arinson Pty Ltd Omaya Holdings Pty Ltd Omaya Investments Pty Ltd The Registrar-General

A: J Griffiths SC / S J Free COUNSEL: 1R: B Coles QC / J Doyle 3&4R: J A Ayling SC / M Sahade 5R: P Walsh

A: Maddocks Lawyers, Sydney SOLICITORS: 1R: Thompson Playford, Sydney 3&4R: DLA Phillips Fox, Sydney 5R: Department of Lands, Sydney

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40263/07 LEC 401374/03

MASON P TOBIAS JA YOUNG CJ in EQ

Thursday 10 April 2008 CITY OF CANADA BAY COUNCIL v F&D BONACCORSO PTY LTD (No.3) Judgment on Costs 1 THE COURT: The Court's substantive judgment in this matter was delivered on 10 December 2007: City of Canada Bay Council v F&D Bonaccorso Pty Ltd & Ors [2007] NSWCA 351. Essentially there were two issues argued on the appeal. The first was whether Chapman Reserve (the Reserve) was "community land" within the meaning of the Local Government Act 1993 (NSW) (the LG Act) when it came into effect on 1 July 1993. This question was answered by the primary judge in favour of the first respondent and the Council's appeal against his Honour's determination failed in this Court. The second question was whether s 45(1) of the LG Act overrode the indefeasibility provisions of the Real Property Act 1900 (NSW) (the RP Act). The primary judge held that it did, but this Court held to the contrary. 2 The Court was therefore of the view that the Council's appeal should be allowed with costs. Its formal orders, set out in [100] of the substantive judgment, were as follows: (a) Appeal allowed.

(b) Set aside Declarations 2 and 3 and Orders 2 and 3 made by Biscoe J on 5 April 2007.

(c) Reserve liberty to the parties to apply in writing only by 4pm on or before 30 January 2008 with respect to Order 5 made by Biscoe J on 5 April 2007 and as to whether this Court should make any orders with respect to the costs of the proceedings in the Land and Environment Court;

(d) The first respondent to pay the costs of the appeal but to have a certificate under the Suitor's Fund Act 1951 if otherwise qualified. 3 Pursuant to the liberty reserved in (c) above, the Council and the first respondent provided written submissions on the question of the costs of the proceedings in the Land and Environment Court. In that regard the order made by Biscoe J in F&D Bonaccorso Pty Ltd v Canada Bay City Council (No.3) [2007] NSWLEC 569 was, relevantly, that the Council pay the first respondent's costs of those proceedings with certain immaterial exceptions. 4 The proceedings at first instance involved issues which went well beyond those which were the subject of the Council's appeal to this Court. Because of the time lapse between the institution of the proceedings by the first respondent in the Land and Environment Court in 2003 and the hearing in 2006-2007, a number of events occurred which caused the pleadings before that Court to be amended and which raised issues which the primary judge determined but which were not the subject of appeal to this Court. Thus, for instance, in the original Points of Claim the first respondent alleged that a development consent granted by the Council in 2002 (the 2002 consent) to the predecessor of the third respondent was void and of no effect on various grounds only one of which was that the land, the subject of that consent, was "community land" within the meaning of the LG Act. 5 That consent was later surrendered when the Council in 2003 granted a further development consent (the 2003 consent). The grant of that consent caused the pleadings to be amended to allege its invalidity. Apparently a great deal of evidence as well as submissions were prepared with respect to the challenge to both the consents, although ultimately, after the hearing of the matter had commenced before the primary judge, the Council conceded the invalidity of the 2003 consent. Nevertheless, the first respondent apparently incurred considerable costs up to that point of time with reference to the asserted invalidity initially of the 2002 consent and, after its surrender, the 2003 consent. 6 A further hotly contested issue before the primary judge was whether the Reserve was indeed "community land" as at 1 July 1993. The Court was informed that a good deal of evidence was also filed on that issue. As we have noted, the primary judge rejected the Council's claim that the Reserve should not be so characterised and his Honour's decision was upheld in this Court. 7 On the other hand, the indefeasibility issue which constituted the major issue in dispute on the appeal, did not arise at first instance until the relevant transfer of the Reserve from the Council to the third respondent was registered on 22 August 2006. This caused a further amended pleading to be filed in September 2006 which sought an order that the Register maintained by the Registrar General under the RP Act be rectified to show the Council as the registered proprietor of the Reserve. The claim for that relief required the joinder by the first respondent of the Registrar General as the fifth respondent. 8 The hearing before the primary judge proceeded on 25, 26 and 27 October 2006 and continued on 7 and 8 March 2007. On the first day of the hearing the Council filed amended Points of Defence conceding that the 2003 consent was invalid due to the failure of the Council to comply with certain advertising requirements. However, it was not until the fourth day of the hearing that his Honour ruled that there was insufficient utility in the first respondent continuing to press other grounds of invalidity with respect to the 2003 consent in addition to that which the Council had conceded on the first day of the hearing. 9 Furthermore, it was not until the latter part of the fourth day of the hearing that argument commenced with respect to the indefeasibility issue which then continued on the fifth and last day of the hearing. As will be appreciated, those arguments were confined to questions of law. 10 The Council submitted that, in light of this Court's decision on the indefeasibility issue and, in particular, upon its finding that the declarations made by the primary judge in respect of the status of the Reserve should be set aside on the ground that they no longer had utility, the appropriate order for costs at first instance should be that the Council and the first respondent should pay their own costs of those proceedings and that the primary judge's order that the Council pay the whole of the costs of the first respondent should therefore be set aside. 11 On the other hand, the first respondent maintained that, given the circumstances associated with the proceedings at first instance which included a number of issues with which this Court was not troubled, the primary judge's order in its favour should not be disturbed. Alternatively, if it should be disturbed due to the fact that the first respondent failed in this Court on the indefeasibility issue, there should be an apportionment resulting in the first respondent recovering 80% of its costs at first instance from the Council. 12 At the conclusion of the hearing of the appeal the parties' views on the question of costs were sought with respect to the manner in which they should be awarded by this Court in the event that the Council succeeded in whole or in part on its appeal and, if it did, whether the Court should then deal with the costs at first instance. 13 As we have indicated, Order (c) made by the Court in its substantive judgment reserved liberty to apply not only with respect to the order for costs made by the primary judge on 5 April 2007 but also as to whether this Court should make any orders with respect to the costs of the proceedings in the Land and Environment Court. 14 Of particular significance in our view was that all parties before this Court agreed that in the event that the Council was successful in whole or in part on the appeal, the proper course was that the issue as to the costs at first instance should be remitted to the primary judge for determination in the light of the findings of this Court. 15 There is no doubt that there were significant complexities associated with the proceedings at first instance which have been detailed in the submissions of the first respondent and, with respect, somewhat oversimplified by those of the Council. Accordingly, given the consensus of all parties at the conclusion of the hearing of the appeal that the proper course was that if the appeal was allowed the question of costs of the proceedings at first instance should be remitted to the primary judge for redetermination, in our opinion it would be inappropriate for this Court to now embark upon the task of determining those costs, particularly as we have no proper grasp of the manner in which the proceedings in the Land and Environment Court evolved over three or so years between the institution of proceedings in 2003 and the conclusion of the hearing in 2007. 16 It is obvious from the primary judge's judgment on costs, which he delivered only last September, that he is fully seized of the history of the proceedings and is in a far better position than this Court to redetermine the question of costs in the light of the success of the Council on the indefeasibility issue in this Court. 17 Accordingly, in our view the question of the costs of the proceedings in the Land and Environment Court should be remitted to that Court for redetermination, if thought fit, in light of the substantive judgment of this Court. 18 So far as the costs of the appeal are concerned, this Court ordered that the first respondent pay those costs but granted it a certificate under the Suitors' Fund Act 1951 if otherwise qualified. That order did not differentiate between any of the respondents in that on its face it required the first respondent to pay the costs not only of the Council but also of the third and fourth respondents and the Registrar-General. Those respondents and the Registrar-General had submitted at the conclusion of the hearing of the appeal that if the Council succeeded on the appeal on the indefeasibility issue, the first respondent should pay their costs of the appeal. 19 However, it is fair to say that the order made by this Court in relation to the costs of the appeal were not supported by any reasons notwithstanding that it had been submitted on behalf of the first respondent that the third and fourth respondents, as well as the Registrar-General, should pay their own costs of the appeal even if the Council was successful and that in any event there should be only one set of costs payable in respect of the indefeasibility issue, if that was the only issue on the appeal upon which the Council succeeded. 20 As the orders made by this Court on 10 December 2007 had not been entered, the first respondent filed a notice of motion on 17 December 2007 pursuant to Pt 40 r 9 of the Supreme Court Rules 1970 (r 36.16(1) of the Uniform Civil Procedure Rules (UCPR)) seeking a variation of Order (d) by deleting that order and substituting for it the following:

(d) the appellant to pay the first respondent's costs of the appeal so far as they relate to para 1 of the appellant's Amended Notice of Appeal with Appointment filed on 26 September 2007;

(e) the first respondent to pay the remainder of the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified. 21 The first respondent's submissions in support of its notice of motion may be summarised as follows:

(a) The community land issue was a discrete issue which raised a question of mixed fact and law which in no way overlapped with, and was therefore entirely independent of, the indefeasibility issue.

(b) Although occupying a comparatively small proportion of the substantive judgment of this Court ([14] to [19] inclusive), there were still substantial costs incurred by the first respondent in preparing its written submissions with respect to that issue and by the Council in preparing the appeal books which were, in substance, devoted to the evidence relating to that issue.

(c) It would be quite unfair to require the first respondent to pay the Council's costs of the community land issue which it lost not only before the primary judge but before this Court. In fact, it would be fair to say that this Court was dismissive of the Council's submissions on appeal with respect to that issue, finding that they had " no substance ". This was exemplified by the fact that the first respondent was in effect, not called upon by the Court to orally reply to the Council's submissions on this issue.

(d) Contrary to the Council's submissions, the community land issue and the indefeasibility issue were not " inextricably linked ". Although it is true that this Court determined that the declarations made by the primary judge with respect to the community land issue should be set aside as having no utility given its finding with respect to the indefeasibility issue, that finding does not detract from the fact that considerable expense was incurred on the appeal in successfully resisting the Council's challenge to the primary judge's finding with respect to the community land issue.

(e) Although the normal rule is that costs follow the event, the Court retains a discretion to apportion costs especially where there are " discrete " issues which extend beyond cases where there are separate claims made within a single matter or disputed questions of fact or law on which a party fails notwithstanding that it is otherwise successful in terms of the ultimate outcome of the proceedings: James v Surf Road Nominees Pty Ltd (No. 2) [2005] NSWCA 296 at [32]-[36] applied in Roads & Traffic Authority (NSW) v McGregor (No 2) [2005] NSWCA 453 at [17]. 22 The Council's submissions with respect to the first respondent's application that this Court vary its costs order with respect to the appeal may be summarised thus: (a) Although it was accepted that under Pt 40 r 9 of the Supreme Court Rules 1970 (r 36.16(1) of the UCPR) that the Court has power to vary its order as to its costs of the appeal, nonetheless that power should only be used sparingly and with great caution. Exceptional circumstances must be present to justify the re-opening of an issue which has been finally determined by the Court in its substantive judgment.

(b) A party seeking reconsideration of a final order must ordinarily demonstrate that the omission sought to be rectified had not arisen through that party's neglect or default: De L v Director-General, New South Wales Department of Community Services (1997) 190 CLR 207 at 215; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302, 308, both of which were applied by this Court in Multiplex Constructions Pty Ltd v Irving [2005] NSWCA 1 at [15]-[24] per Ipp JA (with whom Santow JA and Pearlman AJA agreed). It was however acknowledged that where an unsuccessful party had not had a reasonable opportunity to be heard on the issue in question, this would justify the exercise of the power to re-open the matter.

(c) In the present case there were no exceptional circumstances that would justify a re-opening on the question of the costs of the appeal. This was because that issue was squarely before the Court and all necessary submissions should have been made with respect thereto at the time of the hearing. Reliance was placed upon the following passage in the judgment of Basten JA, with whom Mason P and Bryson JA agreed, in Grygiel v Baine (No 2) [2005] NSWCA 434 at [12]-[13] where his Honour said: "12 … the Court should be entitled to act on the basis that resolution of the issue is not intended to be the subject of further submissions, unless a contrary position has been indicated at the hearing. The burden on the Court of applications to address further in relation to costs after judgment is significant. Inadvertence on the part of the legal representatives will generally not be a sufficient basis for permitting further submissions, even in writing, and certainly not a basis for a further hearing, as appears to have been proposed in the present case. 13 The expeditious despatch of the business of the Court depends to a significant extent on the Court being able to rely upon practitioners appearing before it to ensure that its attention is drawn to matters relevant to the determination of the proceedings. If any unexpressed inference is sought to be drawn from the statement that the Court did not "invite" submissions on a particular topic, that inference must be rejected."

(d) The fact that the Court and the parties are entitled to expect that issues relating to costs will be dealt with in a timely and efficient manner was of particular significance in the present case where the question of costs upon the disposal of the appeal was expressly raised by the Court at the end of the hearing on the substantive issues. The first respondent had ample opportunity to put all its submissions with respect to that issue and should not now be provided with a second bite of the cherry. Senior counsel for the first respondent in fact made submissions as to the costs orders that should follow depending upon the substantive outcome of the appeal and having regard to different eventualities.

(e) Earlier in the hearing the Court had given a clear indication to the parties that the Council would not succeed with respect to the community land issue. To the extent that the first respondent contended that that was a matter which should have affected the Court's order as to the costs of the appeal, any such submission to that effect could and should have been made expressly at the hearing. The failure of senior counsel for the first respondent to put the matter fairly and squarely to the Court at the appropriate time does not constitute a proper basis upon which the Court should now permit the issue to be re-opened for the purpose of varying the Court's order. As Mason CJ observed in Autodesk Inc at 303: "[It] must be emphasised that the jurisdiction [to review or re-hear an issue] is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the parties seeking the rehearing. The purpose of the jurisdiction is not to provide a back door method by which unsuccessful litigants can seek to re-argue their cases."

(f) The first respondent's contention that their submissions on costs at the end of the hearing were relevantly " truncated " due to the time of day (the Court reserved its decision and adjourned at 4.38pm) had no factual basis. As the transcript reveals, senior counsel for the first respondent was not pressed to abbreviate his submissions on costs or denied any opportunity to make such submissions as he thought fit dependant upon the outcome of the appeal. Furthermore, senior counsel did not, before the Court adjourned, seek leave to supplement his oral submissions with any written submissions on the issue of the costs of the appeal. The first respondent should therefore not be permitted to do so now.

(g) The present is not a case where the parties and the Court failed to address a critical factor such as an applicable statutory provision or some direct and binding authority. The Court was plainly cognisant of the two issues raised by the appeal and the principles governing the Court's discretion as to costs. There was therefore no reason why, in the interests of justice, the Court should reconsider its decision as to the costs of the appeal.

(h) In any event even if the Court was satisfied that it should reconsider the correctness of its order, that order should stand. The appeal involved two closely connected issues - the community land issue and the indefeasibility issue. The principles governing the adjustment of costs orders in the event of an appeal in which the successful party fails on some issues but succeeds on others was considered by the Court in Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 where it was said (at [6]-[7]): "6 Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which the appellant was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).

7 As the appellants submit, the commencing position is that costs follow the event so that a successful party is entitled to costs. In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 (at [24]). A similar approach is adopted in the Court of Appeal. If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 (at [27])."

(i) In the present case, costs should follow the event without any differentiation between particular issues according to whether the Council was successful or unsuccessful with respect thereto. The community land issue was not " clearly dominant or separable ". The Council relied on the two issues as alternative bases for setting aside the orders made by the primary judge going to the validity of the transfer of the Reserve and its registration. The community land issue was logically antecedent to the indefeasibility issue. Had the Court found in the Council's favour on the former issue, it would have followed that the orders made by the primary judge would have been set aside and it would not have been necessary to resolve the indefeasibility issue.

(j) The close connection between the community land issue and the indefeasibility issue was reflected in the orders made by the Court setting aside the declaration of the primary judge with respect to the status of the Reserve as community land. Furthermore, the Court on appeal considered that it was appropriate to set aside those declarations notwithstanding the Court's own finding as to the status of the Reserve as community land because it followed from the Court's conclusions on the indefeasibility issue that there was no utility in maintaining the community land declarations.

(k) Furthermore, the argument on the community land issue did not lead to any relevant increase in the time taken on the hearing of the appeal. The hearing was concluded within a day and the community land issue did not occupy any significant part of the hearing. To the extent that preparation going to that issue was required, it involved a revisitation of the evidence and submissions at first instance. The agitation of the community land issue did not lead to the parties incurring additional costs of such significance as to warrant a special order. 23 The third and fourth respondents, as well as the Registrar General, opposed the first respondent's motion to re-open the issue of the costs of the appeal. The third and fourth respondents submitted that they had successfully supported the Council's appeal and should therefore be allowed their costs. The Registrar-General supported the Council's submission that the first respondent had had ample opportunity at the conclusion of the hearing of the substantive issues on the appeal to make such submissions as it wished concerning the costs of the appeal. Having taken advantage of that opportunity, there was no proper basis upon which that issue should be revisited. In any event the Registrar General, having been joined by the first respondent to the proceedings at first instance and having successfully argued both before the primary judge and this Court that the third respondent had obtained an indefeasible title to the Reserve, submitted that no reason existed as to why it should be deprived of its costs of arguing that issue. 24 Furthermore, in its Notice of Contention filed 18 May 2007, the first respondent raised issues specific to the Registrar General upon which it failed. 25 Two primary questions arise out of the parties' submissions. First, should the Court exercise its discretion to re-open the issue of the costs of the appeal; and, second, if the first question is answered in the affirmative, was the community land issue relevantly separable from the indefeasibility issue so as to justify, in the circumstances, a special order for costs with respect to it. 26 The essential thrust of the Council's submissions with respect to the first question was that the first respondent, having been expressly requested by the Court to make submissions with respect to the costs of the appeal, had taken advantage of that opportunity, had said all that it apparently wished to say on the subject, had not sought leave to file further written submissions with respect to the issue upon the basis that it had not had time to fully consider the matter, and yet had failed to make clear in its submissions that in the event that the Council was unsuccessful on the community land issue, a special order for costs should be made with respect thereto. 27 The exchange between the Court and senior counsel for the first respondent with respect to the costs of the appeal was relevantly as follows: "COLES: … On dealing with the costs in this court, if the appeal succeeds, depending on how it succeeds, but if the appellant succeeds on all of the issues it has raised, there should in our submission be the costs of its success on the park issue. On the indefeasibility issue, in our submission, because it has regularly in effect asserted the rights of others, there should be no order as to costs on that. So far as the defendant is concerned there should be no order in its favour for any costs, after all, it did not appear in the court below and it's still a submitting party as far as we're concerned.

MASON P: So this is Mr Ayling's client you're talking about?

COLES: Mr Ayling's client, yes. So we would suggest that there will be no costs order in connection with Mr Ayling's client. So far as the Registrar General is concerned, apart from some short submissions really adopting those of the appellant on the question of construction of 138 which is, after all, the order that's actually been made against the Registrar General or one of the bases for the order against Registrar General. The Registrar General has not of course itself appealed from the making of that order or otherwise indicated that it's unable or unwilling for administrative, departmental or statutory reasons to carry it out. It's role has principally been to support on general terms the position of the appellant. There should only be, in fairness, one set of costs on the indefeasibility issue, that would result primarily in the appellant having none and of the Registrar General being left to pay its own in our submission." 28 On reading the first part of this exchange, one might be forgiven for thinking that Mr Coles was submitting that his client should receive its costs of what he refers to as "the park issue" in the event that the Council was not successful thereon. However, in our view, a closer reading of the submission indicates that senior counsel was referring to the situation where the Council succeeded on both the issues it had raised, in which event it was contended that although it should have the costs of its success on the community land issue, it should not have its costs of the indefeasibility issue. 29 This notwithstanding, senior counsel prefaced his remarks upon the basis that they "depend[ed] on how it [the appeal] succeeds". It is apparent to us that senior counsel was attempting to differentiate between, on the one hand, the Council succeeding on both issues and, on the other, it succeeding on the indefeasibility issue but failing on the community land issue. Unfortunately, senior counsel did not expressly spell out his submission on that alternative scenario. Nevertheless, in our view, sufficient was said and, in any event, it was fairly obvious that the first respondent was seeking to have the Council pay its costs of the community land issue in the event that it was successful thereon. 30 This Court ought to have provided reasons for its decision with respect to the costs of the appeal, which it regrettably failed to do. The fact that senior counsel for the first respondent made clear submissions with respect to the costs of the third and fourth respondents on the one hand and the Registrar General on the other and, if they were successful, on the indefeasibility issue, made the giving of reasons for rejecting those submissions (which was the effect of Order (d)) all the more necessary. 31 The sad fact is that those submissions were overlooked by the Court when it made in Order (d), which did not attempt to differentiate between the costs of the Council, the third and fourth respondents and the Registrar General, but merely ordered the first respondent to pay the costs of the appeal thereby including the costs of those parties. 32 It seems to us that senior counsel for the first respondent did attempt, albeit with some lack of clarity, to differentiate between the situation where the Council was successful both on the community land issue as well as the indefeasibility issue, and the situation where it was unsuccessful on the first of those issues but successful on the second. The words "there should in our submission be the costs of its success on the park issue" seems to us to have constituted an implied contention that the first respondent should have its costs of the community land issue if it was successful thereon and an express contention that the Council should have its costs of that issue if found in its favour. 33 The submission further asserts that even if the Council was successful on the indefeasibility issue, there should be no order as to the costs thereof as the first respondent was asserting in the public interest that the Reserve remained vested in the Council and that it (the Council) had not passed an indefeasible title to the Reserve to the third respondent. In other words, it was acting in the public interest in seeking to have the Reserve remain in the Council's hands for its public purpose. In so acting, it should not be mulct in costs in the event it was unsuccessful in that endeavour. 34 As we have already indicated in [19] above, the Court's Order (d) was not supported by any reasons notwithstanding that, at the very least, submissions had been made on behalf of the first respondent that the third and fourth respondents, as well as the Registrar General, should pay their and its own costs of the appeal even if the Council was successful on the indefeasibility issue. Regrettably, when making Order (d), the parties' submissions with respect to the costs of the appeal were simply overlooked. In our opinion therefore, the issue as to the costs of the appeal should be revisited. The first question referred to in [25] above should therefore be answered in the affirmative. 35 In our opinion the community land issue was not "inextricably linked" with the indefeasibility issue and was clearly a separable issue determined contrary to the Council. The reason why that issue took relatively little time in terms of the oral hearing of the appeal was because the Council's case with respect to that issue had no merit. A reading of the transcript of the argument makes it clear that from a very early point in the Council's oral submissions on this issue the Court considered that they lacked substance. This is why the first respondent was stopped from responding to them. This is the reason why the hearing of that issue constituted a relatively small part of the hearing time of the appeal. 36 Nevertheless, it is apparent that the first respondent incurred a considerable degree of expense in preparing to meet the Council's case on the community land issue. This is reflected in the written submissions on that issue. Further, it would be reasonable to infer that substantial expense was incurred by the Council in the preparation of the appeal books which, so far as the Blue Books were concerned, were entirely devoted to the documentary material which was before the primary judge relating to that issue. There is no reason in our opinion why the first respondent should be required to pay those costs just because it ultimately was unsuccessful on the indefeasibility issue. 37 We accept the Council's submission that the community land issue was logically antecedent to the indefeasibility issue and that had the Court found in the Council's favour on that issue, it would not have been necessary to deal with the other issue and the Council would have succeeded on the appeal. However, in our opinion, that fact does not inextricably link the two issues. Each could have been determined quite separately from the other (as in fact occurred). The mere fact that it would not have been necessary for the Court to deal with the indefeasibility issue in the event that the Council had succeeded on the community land issue does not detract from the fact that the two issues were separate and remained so. 38 Accordingly, in our opinion the community land issue was clearly separate from the indefeasibility issue and the costs incurred by the first respondent in supporting the primary judge's decision with respect thereto in this Court could not be regarded as other than significant. It would, in our view, be entirely unfair for the first respondent to be required to pay not only its own costs but also those of the Council with respect to that issue, particularly given the short shrift that the Council's submissions relating to that issue received in this Court. It was an unmeritorious issue to argue on the appeal and the Council should not profit thereby simply because it succeeded on the indefeasibility issue. In these circumstances the Council should pay the first respondent's costs with respect to the community land issue. 39 We come now to the costs of the third and fourth respondents on the one hand and the Registrar General on the other. As to the former, in [4] of the substantive judgment, we noted that the third and fourth respondents only made submissions with respect to para 1 of the first respondent's Notice of Contention which argued that it was not open to the Council to assert that it had transferred to the third respondent indefeasible title to the Reserve. However, that issue seems ultimately to have been abandoned, as it did not find its way into the oral argument on the appeal as a reading of the transcript confirms. Certainly, it was in the third respondent's interest that the Council succeed on the indefeasibility issue and it has in fact obtained the benefit of that success. However, in all the circumstances, and especially given that the third and fourth respondents filed submitting appearances with respect to the first instance proceedings, in our view the first respondent should not be required to pay those respondents' costs of the appeal. 40 Finally, it is to be noted that the Registrar General actively supported the Council on the indefeasibility issue. It is true that the first respondent joined the Registrar General as a party to the proceedings, but this was necessary in view of the belated registration by the Registrar General of the transfer of the Reserve from the Council to the third respondent. The Registrar General thereby became a necessary party although it would have been open to him to have filed a submitting appearance and to have taken a neutral stance with respect to the indefeasibility issue. 41 Although it might be said that the Registrar General had a duty to protect the Register as well as the interests of that party whom he had registered as the registered proprietor of the Reserve, nevertheless we would regard his active participation on the appeal as reflecting his representation of the public interest in the indefeasibility of the Register. In these circumstances, it is our opinion that the Registrar General should bear his own costs of the appeal. 42 Accordingly, we make the following orders: (a) Set aside Order (d) made in the substantive judgment of this court on 10 December 2007;

(b) Remit to the Land and Environment Court the issue as to the costs of the hearing at first instance before that Court to be determined in light of the reasons and orders of this Court given and made on 10 December 2007;

(c) The appellant to pay the first respondent's costs of the appeal so far as they relate to para 1 of the appellant's Amended Notice of Appeal with Appointment filed on 26 September 2007;

(d) The first respondent to pay the remainder of the appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified;

(e) The third, fourth and fifth respondents to pay their own costs of the appeal;

(f) The appellant to pay the first respondent's costs of the Notice of Motion filed for the first respondent on 17 December 2007.

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Suitors' Fund Act 1951(NSW)

At a glance

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Before

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Judgment (41 paragraphs)

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Legislation Cited (4)

Cases Cited (11)