SDA Australia Pty Ltd v Ashfield Municipal Council

CITATION : SDA Australia Pty Ltd v Ashfield Municipal Council [2009] NSWLEC 123

CASES CITED: Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Sherborne Estate (No 2): Vanvalen v Neaves [2005] NSWSC 1003; (2005) 65 NSWLR 268

(a) costs up to, or from, a specified stage of the proceedings; or (b) a specified proportion of the assessed costs; or (c) a specified gross sum instead of assessed costs; or (d) such proportion of the assessed costs as does not exceed a specified amount." 12 Mr Clay relies upon a number of authorities, in particular the judgment of Palmer J in Sherborne Estate (No 2): Vanvalen v Neaves [2005] NSWSC 1003; (2005) 65 NSWLR 268 in which his Honour outlined some of the principles that apply when a court is considering whether to exercise its power under s 98(4). 13 Palmer J notes, at [40], that one of the justifications for exercising that power is to give effect to the overriding purpose facilitating the just, quick and cheap resolution of the real issues in dispute as mandated by s 56 of the Civil Procedure Act. His Honour continued to state, at [41], however, that the power under section 98(4) must be exercised judicially. That is, the exercise of the power must have a proper factual foundation and must be explicable according to legal principle. 14 His Honour went on to say, at [42], that the court's decision under s 98(4) would have to be an informed one; that is, founded on a consideration of the costs actually incurred, the circumstances at the time at which they were incurred, whether they were reasonable in those circumstances and what would have been a reasonable amount to have incurred. 15 In that particular case, Palmer J noted that there was no evidence before the Court sufficient to enable the Court to make any logical, fair and reasonable estimate of what would be an appropriate gross sum to incorporate in the costs order. 16 Mr Clay also refers me to the judgment of Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 in which his Honour also set out, at [9], a number of principles relevant to the exercise of the discretion to make an order under s 98(4)(c) of the Civil Procedure Act. Those principles include, inter alia (i) that the court has to be confident that the approach taken to estimate costs is logical, fair and reasonable; and (ii) the courts must have sufficient confidence in arriving at an appropriate sum of materials available. 17 There is before me an affidavit of the applicant's solicitor, Mr G N McKee, in which he sets out what he regards as being a fair and reasonable estimate of the Council's costs. However, I was not involved in the case before the commissioner, I do not know the details of the issues, I do not know what is in the various experts' reports and I do not know what additional costs were incurred as a result of the amended plans that were ultimately relied upon. I am not better placed to assess the merits of the costs claim than a costs assessor. I have no confidence, therefore, that I am in a position to be able to fix a specified gross sum as sought by the applicant. 18 I have nevertheless come to the view, however, that the Council is entitled to all of the costs arising after 14 November 2008 when the case was adjourned so that the amended plans could be prepared, considered and the case continued. 19 As to the costs of the notice of motion, it must follow that the applicant must pay those costs since there is really no reason why the order that I have indicated should not be made. This has been the consistent approach of the Court when cases have had to be adjourned as a consequence of a late amendment to the application. 20 The formal orders therefore are:

(2005) 65 NSWLR 268