Greenwood v Warringah Council

Competing costs submissions 14Mr Pickles argued, at the costs hearing, that my decision that the time limitation on the earlier consent was unlawful, and that Scott enjoyed consent in respect of ML 47, meant that he was "successful" in his class 4 proceedings, and that costs should follow that "event", pursuant to r 42.1. Mr Pickles contends that Scott achieved an outcome in excess of what Council offered him (which was "absolutely nothing" - Tp3, L33). 15Counsel for the Council (Mr I Hemmings) contends, on the other hand, that costs should be determined on the basis that Scott succeeded on only one ground he argued, and only partially on that. 16Mr Pickles says that all grounds pleaded by the applicant were alternative, so Scott needed to succeed on only one. He, therefore, relies upon the Court of Appeal's decision in James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 ("James"), in which the court said (at [32]ff): 32 ... an unsuccessful party may be ordered to pay the entirety of the costs of the successful party, even though the successful party did not succeed on all issues. However, as is specified by the rule itself, the Court is entitled to make a different order. That may occur where there are multiple issues involved... ... 34 Where a matter involves multiple issues and the question before the court is whether it should make some other order as to costs other than the order that costs follow the event, a distinction is commonly drawn between cases which involve clearly discrete issues for determination, and those in which all issues are inseparable, or at least sufficiently linked, with respect to the overall disposition of a particular matter. ... ... 36 Where the court does exercise its discretion to apportion costs, the apportionment itself involves the exercise of discretion. As Gummow, French and Hill JJ recognised in Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 [('Dodds')]: "Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial judge. Mathematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation."... 37 In the Court's opinion, it would be unreasonable to separate out "the construction issue" relating to the Deed of Guarantee and order that the corporate respondents be entitled to some proportion of the costs of the proceedings because they succeeded on that issue. The construction of the guarantee meant little of itself. The intent of the proceedings relating to the guarantee was to seek to have the appellants made liable on it. This Court has found against the corporate respondents on that issue. Accordingly, subject to what is said below about the cross-claim on the oppression issue, the corporate respondents should pay the appellants' costs of the proceedings. 17He also relies on Campbell JA's judgment in Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256; 288 ALR 385 ("Tomanovic") (with which Macfarlan and Young JJA agreed). His Honour said: 59 The Sayer Interests also support their contention by an analysis of the number of paragraphs of the written submissions on each side that dealt with submissions that were upheld. In my view, that is a highly unpersuasive way of arguing concerning a decision on costs. How long a writer chooses to make a paragraph is as much a matter of style as substance. More importantly, for the reasons I have already given, the fact that the Court did not uphold a particular ground does not mean that the factual basis for the complaint it made did not contribute to the overall finding of Oppression, or that it was a separable issue. ... 63 In my view, the Sayer Interests should pay the Tomanovic Interests' costs of the appeal. ... Particular Matters Relating to Costs of Trial 81 The starting point for consideration of the costs of the trial is that UCPR 42.1 provides: "Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs." 82 This suggests that, unless there is reason to do otherwise, the Sayer Interests should receive the whole of the costs of the Common Law Proceedings (concerning which they succeeded on every issue raised), while the Tomanovic Interests should receive the costs of the Equity Proceedings, unless there are facts concerning the Equity Proceedings which make it appropriate to regard "the event" as something distinct from the whole of the Equity Proceedings. 83 The Sayer Interests submit that there are several matters that call for the costs order concerning the Equity Proceedings to depart markedly from the starting point that UCPR 42.1 provides. One is that the Tomanovic Interests "either abandoned or failed in respect of 90% of the myriad of particular allegations of oppression pressed against Mr Sayer in the Equity Proceedings" . This figure of 90% is derived from a detailed analysis that counsel for the Sayer Interests put forward of the evidence, closing submissions, cross-examination and judgment in the court below. That analysis identifies some 22 factual topics, breaks them into categories of "claims of oppression pressed in evidence, but abandoned at commencement of the hearing" , "claims of oppression particularised and lost at trial, and not pressed by appellant on appeal" , "claims of oppression particularised - pressed and lost at both trial and on appeal" , "respondent's claim in Common Law Proceedings debt recovery claim (excluding cross-claim)" and "claims of oppression upheld on appeal" . It then counts the number of paragraphs dealing with affidavit evidence in each category, the number of paragraphs dealing with each such topic in closing submissions, and the number of pages devoted to each such topic in cross-examination, and the number of paragraphs of the trial judgment devoted to each such topic. 84 This is a highly artificial way of proceeding and gives a false air of mathematical precision. As has been repeatedly stated, where there is a mixed outcome in proceedings the question of apportionment of costs between issues on which the party who has overall been successful has succeeded, and those on which that party has failed, is very much a matter of discretion, and mathematical precision is illusory: [citations omitted, including James and Dodds] ... Further, even the number of topics that are identified and categorised overstate matters to some extent. Even so, there is substance in the submission that the Tomanovic Interests raised many matters on which they did not succeed. ... 115 Weighing all these considerations, the appropriate order for costs in the court below is that the Sayer Interests pay 40% of the overall costs of the Tomanovic Interests. 18Mr Pickles submits, in respect of the present matter (Tp5, LL36-40): So these propositions all speak against the Council's approach of dividing each of the grounds, each of the prayers, and each of the grounds, into separate definable issues and then identifying who was successful on each. That's the Council's approach and it's entirely contrary to authority. 19He does, however, acknowledge that two issues (nos 5 and 6) went to the construction of the consent, "having got over the hurdle of the sunset clause" (Tp5, LL46-7), and "didn't really go to the heart of the applicant's claim" (LL49-50), which "was really to establish that it had a consent at all", and "was subsidiary" (Tp6, L1). 20As Council "was going to content (sic) that the consent had other limitations" (LL12-13), it "made sense", and "was appropriate, that the applicant also seek appropriate declarations with respect to the proper construction of the balance of consent ..." (LL16-17, 23), so that both parties "would have certainty" (L28). The applicant can be said to have succeeded (or, at least, had a "neutral" result) on issue 5, and although the applicant failed on issue 6, that conclusion in the class 4 had a "beneficial effect" on the litigation between the parties, by limiting the issues in the class 1 (LL45-9). In any event, issues 5 and 6 were "matters for submission" (Tp9, LL3-4), and their outcome made "certain" the scope of the existing consent (Tp10). 21Having regard to the principles in James, Mr Pickles conceded (Tp7, LL16-22) that: If there's any apportionment in this case it's a separation of the constructional issues from the balance of the case which related to the sunset clause. That's the only way in which one could properly divine a distinction having regard to the principles in Surf Road Nominees. Are they truly separable? The only two separable components in my submission are the construction issues separated from the principle issue being the validity or otherwise of the sunset clause. 22With that in view, the applicant's solicitor, Mr Flaherty, wrote to the respondent's solicitors, on 6 September 2012 (Exhibit G1): I refer to the above matter that is listed for hearing on 26 September 2012. In an attempt to save the costs to be expended on further argument I am instructed to make the following offer of settlement. 1. The Respondent pay 75% of the Applicant's costs of the proceedings as agreed or assessed. In the event your client accepts the offer, I suggest we approach the Associate to His Honour and ask that orders be made by consent in chambers. My client's offer is open for acceptance until 4.00pm on 21 September 2012 at which time it will lapse. In the event your client does not accept this offer and achieves a result no more favourable, my client will rely on this offer in support of an application that your client pay costs of the preparation and hearing of the costs argument on an indemnity basis in accordance with Calderbank v Calderbank. 23Mr Pickles put to the court, orally (Tp12, LL24-5): "That's being generous perhaps to the council because most of the case related to the evidence regarding the sunset clause". 24The seventh ground/issue - the question of "existing use" - was mentioned throughout the judgment (e.g. [26]-[78], [133], [214]-[218]). It arose during the submissions on issue 6, and was dealt with, substantively, at [147]-[150]. It went "beyond the issues" articulated in the pleadings, and I drew my conclusion on it, favourable to the applicant in respect of ML 47, on the basis of the evidence before the court. In terms of costs consequences, this "existing use" ground is indistinguishable from the principles which should apply to issue 6 (Tp9). 25Ultimately, Mr Pickles submitted (Tp12) that the applicant should have an order for his costs, and that (Tp12, LL11-17): If there be any apportionment it would be to reflect the fact that in part the case also was taken up by two constructional issues, those constructional issues being issues 5 and 6 and the existing use rights question in which there was mixed success between the applicant and the respondent but the determination of which is beneficial to the future determination of the Class 1 proceedings and so if there be any apportionment there ought to be no order as to costs in relation to those constructional issues. 26Mr Hemmings submits that the "event" of any proceedings is defined by reference to their aim, as disclosed in this matter by the amended summons, and that there has been a significant failure by the applicant, resulting in significant expense to the Council in relation to the unsuccessful arguments and prayers for relief. 27The applicant sought security to continue what his family had been long doing - namely, operate the business on MLs 46, 47 and 52. Under the court's decision in the class 4 proceedings, it cannot do so. 28Once Council found that the applicant and his forbears had been operating unlawfully for many years, it chose not to force the closure of the operation, but it invited the applicant to regularise his use, leaving him with the customary choice of options - seek a consent, or take class 4 proceedings. 29The limitation in the first consent was continued in the modification, which expanded the range of materials ([215]-[216]), but Scott's DA sought a widening of the use which already enjoyed consent. If the modification were found invalid, the applicant would have to fall back on the first consent. 30The applicant actually chose both options, a DA and a class 4, but his DA was unsuccessful, and the class 4 succeeded in regularising only the use on ML 47. Normally, pursuant to s 124 (above at [8]), the class 1 appeal would go first, and much of the time taken in the class 4 would have been avoided (Tpp15-16). 31However, as a result of the correspondence in June and July 2011, between the solicitors (see Gough affidavit of 25 September 2012), the class 4 was expanded, taking away the customary merit/utility of running the class 1 first (Tp22, LL1-12). Pepper J was persuaded that the course agreed upon by the parties - that the class 4 go first - should be adopted (see Tp25, LL21-5), and her Honour made the relevant orders and directions by consent on 8 July 2011. 32In the result, the applicant succeeded to a limited extent (two arguments out of four) on only one question of relief, and not at all on all the others. His aim was not simply to "get rid of condition 14" (Tp21, L27), but to also have the right to operate on all three areas of land. On those twin objectives, he had "very limited success", and Council had "significant success" (Tp21, LL33-4), in terms of both aim and prayers. 33Mr Hemmings submits that the court does not need to adopt the artificial approach of assessing cost or time spent on each aspect of the matter, or seeking "illusory mathematical precision" (see Tp21, L17), but can simply conclude that there was a "mixed outcome" (in terms of either the arguments, or the relief granted), which would lead to an order that each party pay its own costs. 34Mr Hemmings relied on my decision in Calardu Warrawong (Home Starters) Pty Limited v Wollongong City Council [2008] NSWLEC 265 ("Calardu") for that submission and also relies on his contention that the class 4 outcome showed that those proceedings were unnecessary - the applicant should have first prosecuted its class 1 appeal (pars 25-8). That contention for/at the costs hearing represented the first instance where Pepper J's decision of 8 July 2011, to order that upon which the parties had agreed, became controversial. 35Mr Pickles says, in reply, that it is wrong to revisit Pepper J's decision on the order of proceedings in order to determine the outcome on the costs of the class 4. It is irrelevant to the costs question that the outcome of the class 4 proceedings can be said to indicate that, if the class 1 had gone first, the need to pursue class 4 proceedings "would have been obviated" - costs follow the actual "event", not some "hypothetical event" (Tp25, LL25-32, and p28, LL8-11). 36Calardu should be distinguished on the basis of its own subject matter - whether those proceedings should have been resolved by an order under s 25B of the EPA Act. There was no hearing of the class 4 claim on its merits, and the court decided, in the circumstances of that particular case, that each party should pay its own costs. 37Apportionment should not be determined by reference to prayers for relief, any more than to "the number of paragraphs dealing with each category of evidence" (Tp26, LL1-5), rather than by reference to the issues (Tomanovic). 38The amendment of the summons at a late stage flowed from the unexpected turn in the subject matter of the solicitors' correspondence (questioning the meaning of the consent?), and did not go to the heart of the issue between the parties, namely the time limitation on the existing consent (see Tp26, L46 - p27). "Everyone knew what was really being argued ..." (Tp26, L40), and the inclusion of the construction issues "was really and truly an incident along the way, rather than a thing the applicant sought as a result of the proceedings" (Tp27, LL12-14). 39While the applicant may have had the objective of continuing what he had been doing, both in terms of area and materials, the Council's objective was to have him do nothing at all on the land. Had the applicant been totally successful in the class 4, the class 1 would have been unnecessary, but that was a risk the applicant took (Tp27, LL29-39). 40Mr Gough's letter to Mr Flaherty, dated 1 August 2012, argued that, in the circumstances, as he described them, Council should have an order for costs in its favour, but Council was prepared to agree to an order that each party pay its own costs. The letter continued, without referring to Calderbank principles by name (Gough affidavit p13): We advise that if this offer is not accepted and the matter is brought before the Court for determination, we will rely upon our letter of 8 June 2011 in seeking an order that your client pay our client's costs on an indemnity basis. As you are aware this letter requested that the Class 1 be heard before the Class 4 as the Declarations sought "would not facilitate the development envisaged by the Class 1 proceedings". Contrary to this submission your client chose to amend its Summons and proceed to the determination of the Class 4. It now appears in light of the findings of Justice Sheahan that the situation that was anticipated in our letter of 8 June 2011 has arisen and the applicant now needs to pursue the Class 1. This situation would have been avoided if the Class 1 was heard first and in our view the Court would make an order for costs in favour of our client on an indemnity basis.

Consideration 41I accept Mr Pickles's submission (at Tp10) that, in the highly unusual and complex circumstances of the litigation between these parties, it was desirable that the class 4 matter should go first. 42Mr Hemmings's submission, made at their expost facto stage, that the class 4 should not have gone first, while not "mischievous" in the derogatory sense of that word (Tp7, L29 cf, Tp13, LL30-4. See also Tp20, LL9-11), is based entirely on hindsight, and an "old rule", and such a judgment of the issues is not relevant to the question of the costs of those proceedings (See Tp10, LL32-38). 43I also accept Mr Pickles's submission (at Tpp 7-8) that the "movement", close to the hearing, and by consent, in how issues between the parties were formulated, in terms, including the decision not to press prayers 2 and 4 of the original summons, was concerned more with the relief sought than the substantive claims made before and during the hearing, and is similarly not relevant to the determination of costs. 44The costs consequences, for example, of the abandonment of the two prayers not pressed are virtually impossible to see, let alone evaluate. Likewise, the court cannot usefully consider the possible costs implications of the apparent uncertainty in the pleading of prayer 5, which caused "real", if "inherent", tension (Hemmings submissions par 15, cf Tp19. LL25-7), in that the applicant really didn't mean what he was "trying to say", nor the consequence he was asking for. I agree with the observation (par 17) that it was probably a case of "infelicitous drafting". 45I also accept, thirdly, Mr Pickles's submission that my decision in Calardu, a case in which he had appeared as counsel, is not germane to my task in this matter. 46I, therefore, conclude that it is not appropriate that the court order "simply" that each party pay all its own costs, as Mr Hemmings submits (par 33). 47Mr Pickles's primary submissions are that the Council should be ordered to pay all the applicant's costs of the class 4 proceedings, and that an order for "apportionment" of costs is not warranted (subs par 4). 48Success on the "sunset clause" argument, out of all the key findings that I made (see [11] above), certainly was a crucial outcome for the applicant's business, and Mr Pickles argues that that success is the "event" that should underpin a "normal" costs order, and that elements of costs attributable to the arguments the applicant lost are neither substantial, nor readily "separable" from other elements. 49The principles regarding apportionment were dealt with extensively by Mr Pickles in his submissions (at pars 16-21, at Tpp7, 12 and 13, and see [19], [23] and [34] above). They were dealt with in James (see [36]), quoted in [14] above), and in Tomanovic ([84] in [15] above). Relevant decisions of this court were collected most recently by (a) Preston ChJ in Brown v Randwick City Council (No 2) [2012] NSWLEC 28 (at [10]-[11]), in refusing to apportion against an applicant, and by (b) Pepper J in Oshlack v Rous Water (No 3) [2012] NSWLEC 132 (at [60]-[65]), in making a 75% order in favour of an applicant. James, but not Tomanovic was referred to in both those cases, as were F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235 (Biscoe J), and Friends of Turramurra Inc v Minister for Planning (No 2) [2011] NSWLEC 170 (Craig J), copies of both of which were handed up by Mr Pickles during argument (Tp12). 50I adopt and apply those principles, in this case, and, in doing so, accept Mr Pickles's primary submission, and not Mr Hemmings's allegation that Mr Pickles "conflate[d] the apportionment of issues" (Tp20, LL27-39).

Conclusion 51I conclude that the respondent should be ordered to pay the applicant's primary costs of these class 4 proceedings, and I will so order. 52Each party should pay its own costs of the short hearing on the question of final orders, on 6 August 2012. 53That leaves only the costs involved in determination of the costs of the proceedings. 54On Mr Pickles's argument, the order that I have arrived at on the burden of the costs of the proceedings is an "event", which the costs of the costs hearing should follow. 55The respondent contended for an "each party" order, and relied on the Calderbank letter from its solicitors in the event of that contention succeeding. However, it did not succeed. 56The applicant's 75% Calderbank proposition, put in Exhibit G1 ([22] above), on the basis of "saving the costs to be expended on further argument", was not accepted, and the applicant's submission by Mr Pickles (at Tp13, LL19-26) was: ... in my submission the proper approach would be 100% but if there be any apportionment then it's a matter for discretion but in my submission 75% would be at least generous to the council and I indicated that I had tendered the letter in exhibit G1 on that point but if the applicant is successful in respect of obtaining any costs it should have its costs of today because the council has resisted any costs but if it succeeds in respect of 75% or more then it should have indemnity costs of today. 57As I noted (at Tp24, LL8-9): ... that indemnity costs submission wasn't developed but I took it to mean because the letter had been put on a Calderbank basis. 58I see no reason, advanced or available, for the court to order that the costs of the costs hearing should be paid on an indemnity basis, but I am satisfied that the respondent should pay the applicant's costs of that stage of the matter.

Orders 59The orders of the court are:

1. The respondent Council is ordered to pay the costs of the applicant in respect of these class 4 proceedings, and of the post-judgment argument about costs, including the hearing on 26 September 2012, on a party-party basis, as agreed or assessed.
2. Each party should pay its own costs of finalising the orders to be made, concluding the proceedings, between 9 July and 7 August 2012.
3. Exhibit G1 is retained.

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. Decision last updated: 04 February 2013