Hakim and Anor v Canada Bay City Council and Anor

KEY ISSUES: Costs :- review of Registrar's decision to order costs - whether fair and reasonable to award costs

Land and Environment Court Act 1979 s 69 LEGISLATION CITED: Land and Environment Court Rules 1996 Part 16 rule 4 Land and Environment Court Rules 2007 Part 3.7 Uniform Civil Procedure Rules 2005 Part 49.19

Aldi Foods Pty Ltd v Holroyd City Council (2005) 142 LGERA 141 Geoform Design Pty Limited v Randwick City Council (1995) 87 LGERA 140 Hakim M B and Anor v City of Canada Bay and the Minister Administering the Ports, Corporatisation and Waterways Management Act 1995 [2007] NSWLEC 17 Hakim v Canada Bay City Council and Minister of Ports and Waterways [2008] NSWLEC 19 CASES CITED: In The Will of Sheppard (1972) 2 NSWLR 714 Marinkovic v Rockdale City Council [2006] NSWLEC 601 Marinkovic v Rockdale City Council (2007) 151 LGERA 385 Millenium Projects Pty Ltd v Baulkham Hills Shire Council [2004] NSWLEC 761 Port Stephens Council v Sansom (2007) 156 LGERA 125 Vigor Master Pty Limited v Warringah Council [2006] NSWLEC 140

TEXTS CITED: LexisNexis, Ritchie's Uniform Civil Procedure NSW (Service 24 - October 2007) [9192]

APPLICANTS Mr P Tomasetti SC with Mr N Eastman SOLICITORS D C Balog & Associates FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr P Jackson (solicitor) SOLICITORS Pike Pike & Fenwick SECOND RESPONDENT Mr I Hemmings SOLICITORS Lindsay Taylor Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11023 of 2005 Hakim and Anor v Canada Bay City Council and Anor

JUDGMENT ON COSTS 1 Her Honour: The Applicants are seeking a review of the Registrar's decision on 16 January 2008 to award costs in Hakim v Canada Bay City Council and Minister of Ports and Waterways [2008] NSWLEC 19. The Registrar awarded costs to both Respondents from 22 December 2006 to 30 April 2007 in different amounts.

2 The Registrar decided the matter under the Land and Environment Court Act 1979 (the Court Act) s 69(2) as then in force and Pt 16 r 4 of the Land and Environment Court Rules 1996 as then in force. This review is being conducted under the current rules found in Pt 49.19 of the Uniform Civil Procedure Rules 2005 (UCPR) in relation to the review of decisions of the Registrar. Part 3.7 of the Land and Environment Court Rules 2007 (the Court Rules) applies to costs in Class 1 proceedings. There is no relevant difference between the previous costs rule considered by the Registrar and those I will apply in this review. Generally in Class 1 proceedings costs are not awarded unless it is fair and reasonable to do so, as recognised in Pt 3.7(2) of the Court Rules.

3 In this review I do not need to consider the Registrar's decision in terms of finding error, rather the hearing is de novo and I must determine how I should exercise my discretion in the circumstances of this case; see Santow J in Westpac Banking Corporation v Abemond Pty Ltd, Westpac Banking Corporation v Cameron (unreported, NSWSC, 3 November 1994) who adopted Helsham J in In The Will of Sheppard (1972) 2 NSWLR 714: … though there remains the desirability, in practice, 'to look for some proper basis for disturbing the decision under challenge; as well as the natural inhibition on unrestrained substitution of the reviewing court's views for the body with the advantage of having seen any witnesses and having dealt with the matter at the outset.

See also generally the cases in the commentary in Ritchie's Uniform Civil Procedure NSW at [49.19.5], "Scope of review". See also Vigor Master Pty Limited v Warringah Council [2006] NSWLEC 140 at [32] - [34] in relation to the Court's role in a review of a commissioner's decision to award costs to determine if concurrence ought be given to that decision.

4 At the time the Registrar determined the question of costs she had a jurisdictional limit of $30,000. The parties agree that no monetary limit applies in this review.

Class 1 proceedings 5 In matter no 11203 of 2005 commenced on 12 October 2005 development consent was sought for a seawall, swimming pool, retaining wall, access stairs, landscaping, relocation of boulders and to excavate and level the land. In the course of the proceedings, development consent for the seawall, extensive foreshore retaining wall and the movement of boulders and substantial excavation was not pursued by the Applicants. These changes were the subject of amended plans allowed to be relied on by Biscoe J on 11 October 2006. In Hakim v Canada Bay City Council [2006] NSWLEC 746. Biscoe J stated at [4] and [8]: The matter has been in the list for case management and for directions on a good number of occasions. On 30 August 2006 the parties' experts met at the site. Following that meeting the applicants were advised that all experts agreed that the plans were deficient and could not be supported. It appears that the primary problem was that the proposal showed a large high wall that would be visible from the Parramatta River, which was regarded as objectionable. One of the experts present on that occasion was the applicants' town planner, Mr David Thurlong, who advised that in consequence of the on-site experts' meeting, and the matters there arising, he could not support the plans the subject of the application. There appears to be no evidence that Mr Thurlong was of that view at any earlier point in time. The inference would therefore appear to be that what occurred on that occasion was causative of the view that he formed. Thereafter, the applicants instructed their architect to make changes to the plans to address the concerns of the experts. This has resulted in the new plans which are now before the Court and which are the subject of this application for leave to amend. …

Turning now to the present case, it is necessary to compare the plans the subject of the existing appeal and the proposed new plans. The differences are summarised in paragraph 9 of the affidavit of Brian Krohn of 10 October 2006. The respondents emphasised the extent of the changes in the proposed plans. Working inland from the water, it was said first, that the amended plans no longer require the relocation of rock floaters (by which is meant some sandstone boulders from a partially collapsed cliff). Secondly, the seawall which appears in the existing plans now no longer appears. Thirdly, there is now proposed to be virtually no excavation, in contrast to the substantial excavation which appears in the existing plans. Fourthly, the stairs in the existing plans are depicted running across most of the site, whereas now they will be confined to a small part of the north-eastern boundary. Fifthly, the retaining walls have been deleted, at least on the water side of the swimming pool. Sixthly, the usable waterfront space has been removed in the proposed plans. Finally, the structured landscaping which appears in the existing plans, has been replaced by natural foreshore. 6 That left the swimming pool, a retaining wall near the pool, stairs and landscaping as the development for which consent was ultimately sought in the proceedings. 7 In Hakim M B and Anor v City of Canada Bay and the Minister Administering the Ports, Corporatisation and Waterways Management Act 1995 [2007] NSWLEC 17 handed down on 30 April 2007 three appeals were determined by Watts C. The substantive proceedings were conducted in relation to matter no 11203 of 2005 concerning the development application. The appeal was upheld and conditional development consent was granted by the Commissioner. Matter no 11202 of 2005 was an appeal against a direction issued by the Second Respondent (the Minister) to carry out specified rehabilitation works on a collapsed cliff face on the land. Matter no 11200 of 2005 concerned an appeal in relation to a requirement to provide a bond. The resolution of matter no 11203 of 2005 also resolved the two other appeals and final orders were made in those matters at the same time as matter no 11203 of 2005 was determined by the Commissioner.

8 At [5] of his judgment the Commissioner stated the matter was heard over two days in December 2006 and was not completed. Case management was held on 22 December 2006, 12 February 2007 and 4 April 2007 seeking to finalise the matter. At [25] the Commissioner identified the issues raised by the Respondents in appeals nos 11200 and 11202 of 2005 as whether the works proposed in proceedings 11203 of 2005 were consistent with proper remediation of the foreshore. At [26] he stated: On 22 December 2006 the landscaping concept plans were found wanting and the applicant agreed to revise them and to properly describe the works involved. To facilitate this the hearing was adjourned. Applicants' submissions 9 The Applicants relied on the history of the matter as set out in the affidavit of Mr Balog, solicitor, dated 9 July 2007 to submit that it is not fair and reasonable in the circumstances of this case for the Applicants to pay the Respondents' costs. Marinkovic v Rockdale City Council (2007) 151 LGERA 385 per Preston J at [18]-[19]; Aldi Foods Pty Limited v Holroyd City Council (2005) 142 LGERA 141 at [6]-[20] were relied on, inter alia.

10 The matter was complicated involving a difficult site on the harbour foreshore, had two respondents and all parties had their respective experts who engaged in extensive discussions and negotiations in the course of the proceedings. While there were many amendments to plans, several of the amendments were minor and all came about because of the consultation and agreement between the parties' experts or from the Commissioner, not because of any action or demand by the Applicants. There were three matters which were the subject of several plan amendments. Firstly, geotechnical issues were raised concerning how three rock walls would be stabilised on the site. Supporting blade walls were originally proposed in the Applicants' engineer's report but opposed by the Respondents because of their visual impact. Rock bolts were later proposed at the hearing on 22 December 2006. Following an agreement between the engineers that rock bolts would be appropriate, the consent of the neighbour had to be sought as these had to be placed in part on the neighbour's land. As the neighbour refused consent, blade walls had to be reconsidered and amended plans to accommodate this prepared. That approach was ultimately approved by the Court. 11 Secondly, the location and method of construction of the path from the pool to the foreshore was amended to accommodate the requirements of the Respondents' experts. 12 Thirdly, the treatment and location of stormwater drainage pipes to the waterfront changed over time as experts consulted on the proposal. At the hearing on 22 December 2006, an additional matter required to be investigated by the Commissioner was the drilling for pipes in order to limit excavation on the site. That approach did not arise from any of the parties. The Applicants should not have to pay costs incurred by other parties where these were incurred responding to the Applicants' efforts to address matters raised solely by the Court. Council's submissions 13 The Council's solicitor, Mr Jackson, swore an affidavit dated 9 August 2007 which set out the case management history of the matter from 22 February 2006 to 26 July 2006, overlapping with matters also referred to in Mr Balog's affidavit.

14 The Council's solicitor submitted that there was a fundamental change in the Applicants' approach to the appeal at the fourth case management conference on 26 July 2006 when it stated that, contrary to its previous position, the Council wished matter no 11203 of 2005 to proceed before matter no 11202 of 2005 in particular. That changed the nature of the development consent sought to essentially seek rehabilitation of the foreshore area. This was not dealt with at all satisfactorily in the Applicants' development application in matter no 11203 of 2005 including the expert reports filed in support. Consequently the application required considerable clarification and amendment of plans before the Commissioner was prepared to grant development consent finally on 30 April 2007. The matter had been set down for hearing for three days on 20, 21 and 22 December 2007. It was not able to be determined at the hearing because of the Applicants' incomplete plans as reflected at [26] of the Commissioner's judgment. Accordingly the Council seeks its costs from that date.

15 The insufficiency of the plans filed before the hearing are clear from the Amended Statement of Issues filed by the Council dated 16 November 2006 (Mr Balog's affidavit, tab IX) (similar issues are raised in the Minister's Further Amended Statement of Issues dated 15 November 2006 (Mr Balog's affidavit tab VIII)). That identified numerous inaccuracies in the plans as they then stood. Further amended plans were served the day before the hearing and handed up at the hearing on 20 December 2006. The Commissioner allowed these to be relied on (over the Respondents' objections). 16 Detailed submissions concerning the nature of the amendments required in the second, third, fourth, fifth and sixth amendments to the plans/proposal were also made, as identified in Mr Jackson's affidavit. 17 While accepted by the Council that some amendment of plans can occur as a necessary part of Class 1 proceedings, the number of amendments necessitated by the inaccurate and misleading plans relied on by the Applicants over time warrants a finding that it is fair and reasonable that the Council's costs from 22 December 2006 be paid. Minister's submissions 18 The Minister relied on an affidavit of Mr Simington, solicitor, dated 1 June 2007 which also set out a history of the proceedings. It is unnecessary to refer to that in detail apart from noting that it identifies the costs incurred by the Minister as a result of the numerous amendments made to the Applicants' plans.

19 The detailed submissions of the Council dealing specifically with each of the amendments to plans/proposals made before and after 22 December 2006 were relied on. The Minister also seeks costs from 22 December 2006. The Minister otherwise submitted that the matter can be dealt with generally by considering the overall history of the matter. The plans served on 21 December 2006 and relied on for the further hearing on 22 December 2006 were found wanting by the Commissioner. Consequently the hearing was adjourned. The Minister's costs of considering all subsequent amended plans are sought. It does not matter if the amendments required were major or minor, that will simply reflect in whether any costs award is large or small. The history of the matter demonstrates that seven (or six depending on which chronology is followed) amendments of plans were made by the Applicants in the course of the proceedings. The Minister (and Council) seek costs only in relation to those amendments made after 22 December 2006, demonstrating the acceptance of the evolutionary process which involved four amendments of plans up to that point. Very reasonably no costs are sought for those amendments.

20 The presumptive rule is that there be no order as to costs and the question arises of whether on the facts of this case it is fair and reasonable to award costs in the particular circumstances of this case, Port Stephens Council v Sansom (2007) 156 LGERA 125 at par [48], [50] and [51]. The passages in Marinkovic and Aldi relied on by the Applicants which recognise the need on occasion for the amendment of plans to respond to the experts or the Court's requirements as part of the usual conduct of Class 1 proceedings do not support a costs order not being made in relation to the evolution of the development application to the extent this has occurred in these proceedings. History 21 The necessarily lengthy chronology of the proceedings is identified at [19] - [68] of the Registrar's judgment and I therefore do not need to repeat all that detail here. I note that there were (unhelpfully) differences in the respective parties' affidavit evidence concerning the number of plan amendments (a matter of form not substance as the numerous amended plans in evidence are agreed). A chronology of amended plans with relevant Court dates and orders and Mr Jackson's detailed comments on the plans follows:

(i) Amended plans were served on 4 October 2006 and were the subject of orders to allow amended plans by Biscoe J on 11 October 2006 (Mr Simington's affidavit annexure A). Those plans are essentially the "baseline" from which the subsequent amendment of plans in the costs hearing were considered. The plans relied on were prepared by Archer and Wright architects. (ii) The first amended plans/proposal according to the Council were served on 2 November 2006 and were further information and plans, supplementing the amended application to which the Applicants were granted leave to rely upon on 11 October 2006 [by Biscoe J] (Mr Balog's affidavit annexure VII). These consisted of a further report of Jeffery & Katauski (J & K) dated 30 October 2007 identifying extensive rehabilitation works in the foreshore areas as part of landscaping, a statement of environmental effects, a survey plan of Mr Linker, a landscape management plan of 10 November 2006 of Narelle Sonter of Botanica (see also Mr Jackson's affidavit at par 6.) (iii) The Council's Amended Statement of Issues dated 16 November 2006 filed. Minister's Further Amended Statement of Issues dated 15 November 2006 filed. Both statements of facts raised issues about inaccuracies and inadequacies in the plans. (iv) The second amended plans/proposal were served on 19 December 2006 according to the Applicants (Mr Balog's affidavit annexure XIV), or handed up in Court on 20 December 2006 at the first hearing, according to Mr Jackson. These consisted of four plans by Narelle Sonter of Botanica, report of Dani Furlong, planner, vegetation management plan (VMP) of Anne-Marie Clements and a further report of J & K dated 19 December 2006 (no 2). That report contained several changes to what was previously proposed (see Mr Jackson's affidavit at par 14). Architects Archer and Wright were no longer preparing plans for the Applicants. Narelle Sonter of Botanica now was. (v) Hearing set down for 20, 21 and 22 December 2006 before Watts C. Watts C gave the Applicant leave to rely upon the second amended plans/proposal at the hearing on 20 December 2006. Hearing adjourned on 20 December to 22 December 2006. (vi) Third set of amended plans/reports was handed up in Court on 22 December 2006 by the Applicants (Mr Balog's affidavit, tab XIV). Five plans of Botanica dated 21 December 2006 and amendment to VMP on 22 December 2006 (the inaccuracies in two drawings are identified at par 17 of Mr Jackson's affidavit). (vii) Watts C ordered on 22 December 2006: The Applicant is to: · amend landscape concept plans: to remove the three notations to the blade walls and reference to the three-years maintenance period in the vegetation management plan and stormwater plan and include a water tank; · explore the possibility of drilling for services to limit the need for further excavation; · provide detailed hydraulic plans for stormwater and drainage; · amend the Vegetation Management Plan to incorporate Exhibit L. (viii) The fourth amended set of plans/proposal was served on 2 February 2007. The Applicants argued that this was done in compliance with the orders of Watts C outlined above at (v) (Mr Balog's affidavit annexure XVII). A further report of J & K dated 30 January 2007 (no 3) was provided by the Applicants. There continued to be a need for hydraulic drawings to be provided and, according to Mr Jackson's affidavit par 22, the hydraulic drawings were incorrect as these related to the dwelling house construction certificate. Further no sections were shown in the landscape plan and the VMP needed amendment. (ix) Case management conference before Watts C on 12 February 2007 when the Commissioner ordered:

1. The parties are to meet to discuss the changes that the council required to the: · dissipater and silt arrestor; · steps to the north east of the swimming pool; · elevations of the retaining walls; · landscaping maintenance period shall be noted as 5 years.
2. Amendment of the landscape concept plans to confirm the position of the section lines.
3. Plans in Exhibit O shall be amended to delete reference to the lower ground floor such that there is conformity with the DA and CC approvals already obtained.
4. Anne Marie Clements Vegetation Management Plan is to be amended to incorporate Exhibit L.
5. That the applicant shall file and serve by 26 February 2007 the necessary documentation to complete the matter.
6. The respondents are to provide written submissions and draft conditions by 5 March 2007.
7. When the further documentation is filed and served a complete set of plans describing the proposal shall be provided together with a schedule of changes.
8. Provided the Court requires no further information the matter will be dealt with on the papers and further hearing is required … The Council submitted that these orders were extensive directions including the requirement to amend three sets of plans and provide a complete set of plans describing the proposal with a schedule of changes. I agree. (x) The fifth amended set of plans following the Commissioner's orders of 22 February 2007 was served on 26 February 2007. (Mr Balog's affidavit annexure XVIII). The J & K report dated 26 February 2007 (no 4) referred to rock bolting of the overhangs, plans show rock bolting but with no neighbouring owner's consent, inconsistency in the VMP, inconsistent landscape sections, (see Mr Jackson's affidavit par 25). (xi) The sixth amended plans/proposal were served on 23 March 2007 (Mr Balog's affidavit annexure XIX). No leave had been given to rely on these at the time of service. This consisted of a new set of Botanica plan, a further report of J & K (no 5) and an addendum to the VMP (Mr Jackson's affidavit, par 29, 30). (xii) Leave was given by the Commissioner to rely on the sixth set of plans/proposal on 4 April 2007 in a further case management conference. A further plan (no LE-02B) and an addendum to the VMP dated 3 April 2007 was filed on 4 April 2008 by the Applicants. The Commissioner then ordered the Council to file and serve further submissions in relation to the sixth set of amended plans and file draft without prejudice conditions. (xiii) Judgment was delivered on 30 April 2008 granting development consent subject to conditions.

Finding 22 The Court of Appeal in Sansom reviewed the Court's consideration of "fair and reasonable" in the context of whether costs should be awarded in Class 1 proceedings when the usual position is that they are not. That is the formulation in Pt 16 r 4 in force before the Registrar, and the same formulation in Pt 3.7 of the Court Rules before me. As identified in the Minister's submissions, in Sansom Spigelman CJ (Mason P, Beazley, Giles and Ipp JJA concurring) emphasised at [60] and [75] that the question what is "fair and reasonable" must be considered in the particular circumstances of the case. The passages in Aldi and Marinkovic relied on by the Applicants are cases where judges in this Court have identified circumstances where they considered the awarding of costs because of amendment to plans as part of the usual conduct of Class 1 proceedings was not fair and reasonable. I note that in an earlier decision in the same proceedings, Marinkovic v Rockdale City Council [2006] NSWLEC 601, Preston J awarded costs in the course of the proceedings because of multiple failures to comply with the Court's timetables and the need to rely on multiple amended plans. While the conduct of the Applicants in these proceedings does not suggest such egregious breaches of the timetable, the large number of plan amendments after October 2006 leading up to the hearing and thereafter suggests the changes needed were far more than appropriate, even taking into account some need for evolution of the development proposed. I consider the observations of McClellan J in Millenium Projects Pty Ltd v Baulkham Hills Shire Council [2004] NSWLEC 761 at [9]-[10] that costs thrown away when plans are amended are generally payable, continues to be an appropriate approach where the particular circumstances of a case warrant it. 23 The nature of the Applicants' development application changed significantly from that sought at the time proceedings were commenced in October 2005 as is clear from the judgment of Biscoe J of 11 October 2006 where his Honour allowed plans with substantial changes to be relied upon. It was necessary to vacate the first hearing date as a result. The amended plans/proposal were provided a year after the proceedings were commenced. Biscoe J refers in his judgment at [4] to the fact that there had been numerous case managements in the matter up to that point. Several more amendments were required before the Court was able to grant consent on 30 April 2007 well after the hearing date in December 2006. The inadequacies and inaccuracies are identified in the respective Amended Statement of Issues filed by both Respondents in November 2006. Three changes to the plans/proposal occurred before the hearing on 20 December 2006, including the third amended plans/proposal filed at the hearing for which leave to rely on had to be sought. The Commissioner did not consider the plans were in a fit state to approve at the hearing on 22 December 2006. Three further sets of plans/proposals were relied on by the Applicants after the hearing. Costs are only sought in respect of the latter together with any further costs up to the finalisation of the matter on 30 April 2006. As is clear from the brief history above, the amendments made were to both plans and the proposal as detailed in expert reports of J & K and the VMP, inter alia. 24 There has been an unnecessarily large number of plan/proposal amendments as the parties wrestled with the inadequate information supplied by the Applicants through their experts. That inadequacy is directly referred to in the Commissioner's judgment at [26] where he refers to the landscape plans being inadequate. At that stage the only plans relied on by the Applicants were those prepared by their landscape architect Narelle Sonter of Botanica but these purported to deal with more than landscaping and were found wanting by the Commissioner at the hearing and subsequently, as can be seen from the case management orders made by the Commissioner on 22 December 2006 and 12 February 2007, which required numerous plan amendments, inter alia. Further, the Applicants filed without leave the sixth further amended plans/proposal and sought leave after the event to rely on these. The inaccuracies and inadequacies are also apparent when the detailed evidence and submissions of Mr Jackson are considered. 25 The Applicants sought to emphasise that the amendments after 22 December 2006 were brought about because of the Respondents' experts' requirements or because of agreement resulting from the joint conferencing of the experts or because of the Court (in relation to drilling) and were part of an evolution of the proposal before the Court which was part of the usual conduct of Class 1 proceedings. The Applicants also submitted that some of the changes were minor, which is true in relation to the amendments to the VMP required. Many of the other changes were not minor and in any event the large number of changes, even if some were minor, still required the Respondents to incur costs in assessing them. A possible solution to the over-excavation of the site, a concern raised by both Respondents, was raised by the Commissioner at the hearing, namely drilling of pipes underground instead of excavation. This took place after three plans/proposal amendments had already made by the Applicants before the hearing. That the Applicants chose to adopt the agreed position of experts in the proceedings and amend the plans, once again late in the process, does not suggest costs ought not be awarded. Those submissions ignore the history of the matter relied on by the Respondents in relation to the large number of inaccuracies and inconsistencies in the plans/proposals submitted from 11 October 2006 by the Applicants through their experts. 26 It was emphasised in the Applicants' submissions by their counsel that the amended plans/proposal were not due to any particular demand of the Applicants. The Applicants have chosen to pursue an appeal in this Court which, if successful, provided the Applicants with valuable legal rights to develop their property in a certain way. The Applicants chose to engage certain experts to present their case and the way a matter is conducted through their experts is not something the Applicants are separate from for costs purposes. These remarks are directed to the submissions made on their behalf, and are not intended as a reflection on the Applicants' behaviour. 27 I consider it is fair and reasonable in the circumstances of this case that the Applicants must pay the Respondents' costs sought on and from 22 December 2006. The history of the proceedings after that date (and indeed leading up to it) amply demonstrates that the Applicants were required by the Court, or took unilaterally numerous opportunities, to amend the plans/proposal in relation to the development sought in matter no 11203 of 2005. Each of the amendments to plans and the proposal as contained in expert reports, particularly those of J & K relied on by the Applicants after 22 December 2006, required additional work by the Respondents and costs were incurred. I consider the Respondents have been very reasonable in only seeking costs on and from 22 December 2006. Had they been sought, for example, I would have been minded to award the costs thrown away by the change to the amended plans which Biscoe J allowed in October 2006 and reserved costs in relation to. 28 It is not necessary that I find any error in the Registrar's decision but, in any event, I do not. I agree with her conclusions at [95], [97] and [101] in particular. 29 I consider I should order that the Applicants pay both Respondents' costs on and from 22 December 2006. I also uphold the Registrar's decision that the Applicants pay the costs of the hearing before her. As the Applicants have been unsuccessful on this review application they should also pay the Respondents' costs of this application.

03/04/2008 - 22 December 2007 amended to read 22 December 2006 - Paragraph(s) 19

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