Plenty Company Pty Ltd v Coffs Harbour City Council

Publication restriction: Nil

JUDGMENT

1. The matter before me concerns an application for costs by the Applicant in respect of the Second Respondent’s Notice of Motion filed on 3 April 2025 (the Motion). That Motion sought a vacation of the hearing dates in the proceedings and was not moved on. Instead, the Second Respondent filed an Amended Notice of Motion on 15 May 2025 (the Amended Motion) which withdrew all claims of relief sought in the Motion, and other orders that substantially changed the Second Respondent’s ongoing role in the proceedings.

2. Relevantly, the Amended Motion was granted by the Court with the consent of all parties on 21 May 2025 and the proceedings resolved by s 34 agreement and orders upholding the Applicant’s appeal were made on 18 June 2025.

3. Despite the proceedings having resolved by conciliation, the Applicant presses for an order for its costs of the Motion under rule 3.7 of the Land and Environment Court Rules 2007 (NSW).

4. The Applicant and the Second Respondent filed brief written submissions and appeared before me on 24 June 2025 and did not wish to make any further submissions to me in respect of this costs application, only seeking for me to rely on their written submissions. No evidence has been sought to be read in these proceeding, but Senior Counsel for the Second Respondent has helpfully identified in his submissions that the Second Respondent takes no objection to the Applicant’s reliance in its written submissions on Exhibit AC-2 to the affidavit of Alicia Chryssochoides affirmed on 16 April 2025, the affidavit of Dylan Taylor affirmed on 8 May 2025 and the written submissions of the parties filed in respect of the Motion. In addition, the Second Respondent also relies on the transcript for the listing before me on 21 May 2025.

5. The Applicant seeks its costs of the Motion on a number of bases. Firstly, the Applicant argues that it should be awarded its costs because the Motion was “withdrawn”. This is not entirely correct. The Amended Motion was filed on 15 May 2025, and the orders sought by the Second Respondent, were made by the Court on 21 May 2025.

6. The fact that certain prayers for relief were originally sought, and then not pressed, is not, in and of itself, a basis for a cost order against the Second Respondent. My task under r 3.7 of the Land and Environment Court Rules 2007 is to determine whether it is fair and reasonable in the circumstances for an award for costs to be made.

7. It is also submitted by the Applicant that the Motion to vacate the hearing dates was “speculative” and that the Second Respondent’s changed position was unexplained. I will deal first with claim that the Motion was speculative and that the Second Respondent ought to have taken different steps before it filed the Motion.

8. In these proceedings, the Second Respondent is the developer of the land. It is not the owner of the land. Coffs Harbour City Council (Council), the First Respondent in these proceedings, has taken steps to compulsorily acquire part of the land. As the Second Respondent is not the landholder, it is not party to those negotiations under s 10A(2) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). As such, it became necessary for the Second Respondent to seek formal clarification from the Council about the status of the acquisition of the land by Notice to Produce. Production of documents under that Notice to Produce was contested between the two respondents.

9. These are somewhat unusual circumstances for a Class 1 appeal.

10. However, I agree with the Applicant that the Second Respondent could have sought to obtain a clearer status of the compulsory acquisition from the Council prior to filing its Motion.

11. Dealing now with the latter point, that the Second Respondent’s changed position on the Motion and the substantive appeal was unexplained. I do not accept that submission. At the listing before me on 21 May 2025 and in the evidence of Alica Chryssochoides affirmed on 15 May 2025, the Second Respondent’s position in respect of this appeal changed following the production of certain documents from the Council. The Second Respondent also submitted that the production of these documents suggested to it that the risks involved in continuing the proceedings was not worthwhile and as such sought to amend the Motion, changing its position in the substantive proceedings. That explanation justified the Court making the orders in the Amended Motion on 21 May 2025, with the Second Respondent filing a submitting appearance save as to costs the following day on 22 May 2025.

12. It was put to me by the Second Respondent that its position in respect of the Motion was not unreasonable and would have resulted in no different outcome for these proceedings. The Second Respondent also submitted that whilst it continued to seek clarification on the status of the compulsory acquisition, it sought orders vacating the hearing and the other orders in the Motion so that all parties were not put to the expense of preparing for a contested hearing and the costs of preparing expert evidence when the Second Respondent’s role in the proceedings had the potential to materially change.

13. Despite this argument, the fact remains that the Motion was disputed, evidence was filed and served by both the Applicant and the Second Respondent, submissions filed and served by those same parties and the Motion had several appearances before the Court prior to the Second Respondent’s position crystallising.

14. The Second Respondent’s changed position resulted in an agreement being swiftly reached between the parties and the proceedings resolving by way of conciliated outcome under s 34 (3) of the Land and Environment Court Act 1979 (NSW).

15. It is my view that although the Second Respondent’s conduct of the Motion did result in costs to all the parties (including itself), the steps it undertook were necessary and, ultimately, substantially reduced the time and cost of the proceedings to all parties. As such, taking into account all the circumstances of the proceedings and the Motion, I think a cost order is warranted only on a very limited basis in the Applicant’s favour.

16. To this end, I am awarding the Applicant its costs for its appearance on the Motion on 17 April 2025, 5 May 2025 and 9 May 2025, being the three appearances on the Motion before the Court.

17. The orders of the Court are:

18. The Second Respondent is to pay the Applicant’s costs for its appearance on the Motion on 17 April 2025, 5 May 2025 and 9 May 2025 as agreed or assessed.

S Froh

Registrar of the Court

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