Meehan v North Sydney Council

Land and Environment Court (NSW)|2005-11-08|Before: Mr J, Honour Talbot J, Honour McClellan CJ, McClellan CJ

the applicant is to pay the respondent's share of the CAE's fee for the assessment of options A & B, in the sum of $6,600 (item 12 p.6 of attachment $1,148 and $5,453);

the applicant is to pay the respondent's costs 'thrown away' as a result of the applicant's request for "the matter to be stood over" on the morning of the hearing, 28 July 2005. This is to be in the sum of $5,711 (item 9 p.4 of attachment ) ;

the applicant is to pay the disbursements costs of $2,294 for the final hearing date of 17November 2005, this includes counsel's fees;

the applicant is to pay part of the respondent's costs for preparation of the costs submissions in the sum of $4,400 from a total of $9,646 claimed (p.5 of attachment ).

38 Accordingly I propose to seek the concurrence of the Chief Judge pursuant to s69(8) of the Land and Environment Court Act 1979 to the making of the following costs order: 1. the applicant is to pay the respondent's costs in the sum of $21,600 ; 2. the applicant is to pay the respondent's costs of the motion for costs in the sum of $4,400; 3. the above sums are to be paid to the respondent within 21 days. 39 The parties have 14 days to either make a written submission, or apply to make oral submissions, to the Chief Judge on the findings above before his Honour exercises his power of concurrence for the making of the costs order.

40 On the making of the Order for Costs, the exhibits in the proceedings are to be returned to the parties with the exception of Exhibit J.

      J S Murrell
      Commissioner of the Court
      Ljr/jsm

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CITATION : Meehan v North Sydney Council [2006] NSWLEC 598

27 To guide my assessment of costs I refer to the cases of the Chief Judge Preston CJ in Grant v Kiama Municipal Council [2006]NSWLEC 70 and Vigor Master Pty Ltd v Warringah Council [2006] NSWLEC 140 wherein his Honour provides the approach to costs in class 1 proceedings. In Vigor Master Preston CJ said:

I summarised many of the circumstances where courts have considered it would be fair and reasonable to make an orders for costs in Class 1 proceedings in Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006), [15]. … 42. Accordingly, the case did not fall into the category of a Class 1 appeal that had no chance or very poor prospects of success: Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006): [15(f)] and cases cited therein. … 47. The conduct of the applicant in persevering with the hearing of the appeal after having receiving an unfavourable oral report by the court appointed expert was also not unreasonable. The parties' common position was that the Court had a discretion to grant consent. The court appointed experts' opinion was but one piece of evidence in that hearing. It was countered by the opinion of the applicant's expert…. It was not unreasonable for the applicant to seek the adjudication by the Court of the issue, having regard to all of the competing expert evidence. …

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