Fast Buck$ & Anor v Dudley Pastoral Co Pty Ltd & Anor No. 2

Land and Environment Court (NSW)|2001-08-24|Before: Cowdroy J, Mr J, Gummow JJ

The application was made subsequent to the grant of development consent. The Court had no power to grant the application and it was dismissed (see Fast Buck$ & Anor v Dudley Pastoral Co Pty Limited & Anor 27 October 2000: unreported). However the application may well have succeeded if it had been made prior to council's resolution of 14 March 2000.

It is inexplicable that within six weeks of deciding that the soil testing was adequate council should decide otherwise and make the application for further soil testing. Council's conduct justifiably created the perception that the council, having resolved to accept that condition C6 was satisfied, was resiling from its decision. To apply to this court for an order for further soil testing after the litigation commenced only served to confuse the issues. If council harboured any doubts it should have required the first respondent to undertake further soil testing prior to adoption of its resolution of satisfaction of condition C6. Had such step been undertaken this litigation may well have been avoided or at least the issues confined.

The Court therefore orders:-

The applicants are to pay the costs of the first respondent as agreed or assessed.
That no order for costs be made in favour of the second respondent.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Fast Buck$ & Anor v Dudley Pastoral Co Pty Ltd & Anor No. 2 (costs) [2002] NSWLEC 16 APPLICANTS Fast Buck$ and Anor

FILE NUMBER(S) : 40064 of 2001 CORAM: Cowdroy J KEY ISSUES: Costs :- conduct disentitling a successful party to an order for costs LEGISLATION CITED: Land and Environment Court Act 1979 s 69 Fast Buck$ & Anor v Dudley Pastoral Co Pty Limited [2001] NSWLEC 183; CASES CITED: Hamill v Byron Shire Council & Anor (1998) 98 LGERA 400; Latoudis v Casey (1990) 170 CLR 534; Oshlack v Richmond River Council (1998) 193 CLR 72 DATES OF HEARING: 8/11/01; 22/02/02 DATE OF JUDGMENT: 03/14/2002

The applicants submit that they were drawn into the proceedings. In their submissions they claim that they were "hobbled from the outset by the inherent ambivalence of Mr Hogan's evidence given in the earlier hearing [see Hamill v Byron Shire Council [1998] NSWLEC 45; Bignold J] and by the resulting ambiguity of Judge Bignold's findings, and accordingly do not feel that they should incur the level of costs that [they] otherwise might."

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