Consideration
13The Court's costs powers in these Class 4 proceedings arise under s 98 of the Civil Procedure Act 2005 (the CP Act) and r 42.1 of the Uniform Civil Procedure Rules 2005 (the UCPR). While the usual rule is that costs follow the event, the Court has wide discretion to award costs as it sees fit. Costs are compensatory rather than punitive so that the successful party would generally be entitled to its costs in the absence of disentitling conduct per Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 542 - 543 and 547. Where there is more than one respondent costs are generally awarded on the basis of joint and several liability. While the Applicant is entitled to seek costs from one respondent only the more usual situation is that Respondents would share costs where both are ordinarily liable.
14Relevant principles to be considered where parties have filed submitting appearances save as to costs were identified in Cutcliffe v Lithgow City Council [2006] NSWLEC 463 (2006); 147 LGERA 330 at [50]:
The following general guidelines may be formulated, based on the cases and principles reviewed in this judgment, for the exercise of the Court's discretion to order costs where
·an applicant successfully brings proceedings that are necessary to have declared invalid or set aside a development consent or decision of a consent authority;
·the consent authority and the beneficiary of the development consent or decision are necessary or proper parties; and
·the cause of the invalidity is an error of or attributable to the consent authority and not to the beneficiary:
(a)the applicant will ordinarily be entitled to be compensated by an award in its favour of the costs of the proceedings unless it has engaged in disentitling conduct.
(b)where the beneficiary does not defend the proceedings, the applicant's costs will ordinarily be awarded against the consent authority, whether or not the latter enters a submitting appearance. This is because the cause of the litigation is the error of the consent authority and not of the applicant or the beneficiary. The consent authority cannot immunise itself from costs consequences of its own error by entering a submitting appearance because then a successful applicant cannot be properly compensated in costs. It is not sufficient that a consent authority should bear the applicant's costs only up to the time of the consent authority's submitting appearance because the applicant must continue to incur costs thereafter in order to establish, by evidence and argument at a hearing, that it is entitled to declaratory and injunctive relief.
(c)where the beneficiary does defend the proceedings, albeit unsuccessfully, the applicant's costs will ordinarily be awarded against both the beneficiary and the consent authority, whether or not the latter enters a submitting appearance. The award of costs against the consent authority is because its error is the cause of the litigation. It cannot immunise itself from costs by entering a submitting appearance for the reason given in (b) above. The award of costs against the beneficiary is because it chose to defend the proceedings. ...
15At [31] in Cutcliffe Biscoe J held that a successful applicant in declaratory proceedings should be awarded all costs reasonably incurred as a hearing is necessary for declaratory relief to be made. As with every case, the particular facts must be considered.
16This matter differs from the circumstances referred to in Cutcliffe at [50] and Trenwith v Sutherland Shire Council (No 3) [2006] NSWLEC 490 where costs were sought against more than one party including a local council which submitted save as to costs. Here the Applicant brought proceedings necessary for the declaration of invalidity of the consent and the Council and Second Respondent are proper parties. In this case both Respondents filed submitting appearances before the hearing. As to the cause of invalidity being the ROW issue, as discussed below that was not an issue that occurred to any party apparently. Costs are not sought against the Council by the Applicant so that the circumstances are not like those identified in [50(b)] or [50(c)] in Cutcliffe. As I have been told the Council has agreed to pay 45 per cent of any costs order made against the Second Respondent, any concern I might have had about the Second Respondent being liable for an inordinate share of costs is ameliorated. This suggests any costs order made against the Second Respondent should not be limited to 50 per cent of the Applicant's costs.
17The issue next arises of whether the Applicant should get 100 per cent of its costs in the circumstances of this case. It is certainly unfortunate that the ROW issue was not identified from the outset by the Applicant in these proceedings given the "raw" facts theoretically before it, nor was it an issue which had apparently occurred to either the Council as the consent authority or the Second Respondent, the applicant for development. The issue is not self-evident given that there was a change of lot numbers from those referred to in the s 88B instrument to those the subject of the development consent. The Applicant's evidence that it was only alerted to the issue upon the filing of the Respondents' defences does not give rise to substantial disentitling delay but there is some merit in the submission that given the known facts this could have and ideally would have been identified earlier by the Applicant.
18Substantial costs are likely to have been incurred by all parties addressing other issues raised in the proceedings in the five months leading up to the hearing. The Council's solicitor's evidence is that it would have pursued the defences in relation to the other issues but for the ROW issue raised late in the proceedings. The Second Respondent submitted similarly. Had the ROW issue been identified at the outset those costs would not have been incurred.
19In terms of the Second Respondents' behaviour and whether this resulted in additional costs, the Second Respondent unsuccessfully opposed the Applicant's Notice of Motion seeking to rely on the APOC. Further, the Second Respondent filed a Class 1 application which sought to modify the consent and the postponement of these proceedings. That course was rejected by the Court. The Second Respondent also did not surrender the consent as suggested by the Applicant so that a hearing was necessary.
20Weighing up all these factors in order to make a costs order which fairly reflects the circumstances of this case, I will make an order in the Applicant's favour for 80 per cent of its costs to be paid by the Second Respondent as agreed or assessed. I note the agreement of the Council to pay 45 per cent of any costs ordered against the Second Respondent.
21The Applicant has been largely successful in its application for costs and should also have its costs of the costs hearing paid by the Second Respondent.