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[2003] NSWLEC 449
Land and Environment Court (NSW)
2003-02-06
Bignold J, Cowdroy J
Original judgment source is linked above.
The Applicant voluntarily brought the Class 1 proceedings no doubt as an insurance policy against its failure in the Class 4 case. That the risk ultimately vanished within a matter of five weeks with the delivery of the judgment of Justice Cowdroy on 3 September 2002 in the Class 4 proceedings and the insurance policy did not require to be cashed in.
In the circumstances I am satisfied that, conformably with the practice of the Court in relation to not ordering costs in Class 1 proceedings planning appeals save in exceptional circumstances, there is no justification to order costs against the Council in respect of these Class 1 proceedings which otherwise have been formally disposed of by leave being granted by consent to the discontinuance earlier today.
In truth, there was no life in the proceedings once the Applicant succeeded on 3 September 2002 in the Class 4 proceedings. For those reasons, the Applicant's Motion for costs is dismissed. HEMMINGS: In accordance with the Court's normal practice, I'd seek the costs of the Motion.
HIS HONOUR: Thank you Mr Hemmings. Mr Whealy? Anything in opposition?
Consequent upon my decision dismissing the Applicant's Motion for costs for the reasons that I've articulated, Counsel for the Council asks for costs of today's hearing on the basis that the application having been refused, the Council should be compensated for having to defend the Motion. It has become customary practice of the Court when hearing Motions for costs in class 1 planning appeals to make an order for costs against the party unsuccessfully claiming costs by way of exceptional circumstances in accordance with the Court's Practice Direction and practice in planning appeals. No reasons have been advanced as to why that prevailing practice ought not be applied in the present case. Accordingly, in ordering that the Applicant's Motion for costs be dismissed, I order that it be dismissed with costs in favour of the Council on the hearing of the Motion in sum agreed, or failing agreement as assessed.
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Hutchison 3G Australia Pty Ltd
Waverley Council
CITATION : Hutchison 3G Australia Pty Ltd v Waverley Council [2003] NSWLEC 449 APPLICANT: Hutchison 3G Australia Pty Ltd PARTIES : RESPONDENT: Waverley Council FILE NUMBER(S) : 10441 of 2002 CORAM: Bignold J KEY ISSUES: Costs :- Costs in class 1 proceedings LEGISLATION CITED: CASES CITED: DATES OF HEARING: 06/02/2003 EX TEMPORE JUDGMENT DATE : 02/06/2003