THE COUNCIL OF THE MUNICIPALITY OF WOOLLAHRA v SVED

Court of Appeal (NSW)|1998-09-30|Before: Mason P, Giles J, Sheller JA

SUPREME COURT OF NEW SOUTH WALES - COURT OF APPEAL

Mason P. The transcript will show the matters raised and debated in this application. I am not persuaded that the prospects of overturning the decision on costs bear a sufficient prospect of success to merit the grant of leave. It is accepted that the principles were correctly stated by Giles J. He was dealing with a broad area of discretion in relation to costs. His Honour gave reasons to which may be added the inference one draws from the fact that the Council included in its 1996 appeal a challenge to the dismissal of its cross claims against the parties referred to as the successful defendants.

I would also refuse the application on the basis that there was default in compliance with the Registrar's direction which, as indicated in the judgment I gave on 24 July, merely reflected proper practice. I quite accept Mr Gibbons" evidence that he was misled as apparently was junior counsel who provided him with the advice. Nevertheless the Registrar's direction was, in my view, quite clear, and it reflected the practice of the court. The matterwas reinforced by the exchange that occurred as recorded at p 34 of the transcript of argument on 18 May.

I do not consider there has been a satisfactory explanation for the failure to file the application for leave to appeal in relation to the costs order, particularly the default that occurred from the time the Registrar gave the directions that he gave.

I would dismiss the summons and order the claimant to pay the costs of the opponents, Mr and Mrs Sved, and the costs of Mr Goddard for whom Mr Thomas appears today.

Mason P. The orders of the court will be as proposed. MOTBEY: Would your Honours entertain an application that the Sved's have

their costs on an indemnity basis. Mason P: I would entertain it but for my part I would not grant it.

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