Twynam Investments Pty Ltd v Goulburn Mulwaree Council

Representation

1. Mr To, barrister for the Company, and Ms Hammond, barrister for the Council, had appeared in the hearing giving rise to my February decision.
2. For the purposes of this Notice of Motion, written submissions in support have been provided for the Company from Ms Alyce Kliese, a solicitor employed by the Company's legal representatives. Although the name of the author of the submissions is not specifically provided, the signature on the submissions is the same as that of Ms Kliese's signature on her affidavits noted at [9] in my February decision.
3. Written submissions on behalf of the Council opposing the awarding of indemnity costs were provided by Ms Hammond.

The process for addressing the motion

1. The hearing of the motion was scheduled to be held on 31 March 2021. On 30 March 2021, the parties advised me that they were content to have the Company's costs motion dealt with on the papers.
2. As comprehensive written submissions had been supplied for both parties addressing the relief pressed for the Company by the motion, I agreed to this course.

The relevant legislative provisions

1. Two provisions require consideration in my determination of this Notice of Motion. The first is that pressed for the Company on this Notice of Motion, being s 98(1) of the Civil Procedure Act 2005 (the Civil Procedure Act). This provision is in the following terms: 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act - (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.
2. The second relevant provision is r 3.7 of the Land and Environment Court Rules 2007 (the Court Rules). This rule sets out the special costs' position relevantly applicable to proceedings in Class 1 of the Court's jurisdiction (that being the class within which the proceedings in my February 2021 decision and this Notice of Motion fall). At [13] of my February decision, I noted that these special provisions in the Court Rules applied to these proceedings.
3. The rule, relevantly, is in the following terms: 3.7 Costs in certain proceedings (1) This rule applies to the following proceedings (except for appeals under section 56A of the Act) - (a) all proceedings in Class 1 of the Court's jurisdiction, (b) …, (c) … (2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. (3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following - (a) …, (b) …, (c) …, (d) …, (e) …, (f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where - (i) the claim or defence (as appropriate) did not have reasonable prospects of success, or (ii) …

The evidence

1. The further evidence on behalf of the Company on this Notice of Motion comprised an affidavit of Ms Kliese of 18 February 2021. In addition to what can be regarded as its procedural elements, two matters from this affidavit warrant being noted. The first, contained in paragraph 11, is the confirmation that the Company was content to have this Notice of Motion determined on the papers. The second, at Annexure D, was a copy of a letter from the Company's legal representatives to those of the Council dated 23 December 2020, confirming that the Company rejected the offer made for the Council on 26 November 2020.
2. On behalf of the Council, an additional affidavit of Ms Amanda Whiteley of 16 March 2021 was filed. Ms Whiteley is a solicitor employed by the Council's legal representatives. For present purposes, it is appropriate to set out paragraphs 5 and 6 of this affidavit. These paragraphs were in the following terms: 5 The Applicant agreed to pay Council's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the DA proceedings. 6 On 21 October 2020, Maddocks sent a letter to the Applicant's solicitor, offering to settle the costs of both the IHO proceedings and the DA proceedings. The offer was that each party would bear their own costs of both sets of proceedings. That is, Council would not seek payment of its costs thrown away in the DA proceedings.
3. A copy of that letter was annexed to Ms Whiteley's affidavit.
4. To the extent that either letter requires further consideration, it is later dealt with as part of the ebb‑and‑flow of correspondence between the parties in these proceedings.

Introduction

1. The written submissions on this Notice of Motion were filed: 1. for the Company, on 19 March 2021; and 2. for the Council on 25 March 2021.

Introduction

1. The submissions on behalf of the Company in support of this Notice of Motion commenced by outlining a summary of the proceedings leading to my February decision and its outcome.
2. The submissions then set out the terms of s 98 of the Civil Procedure Act (reproduced earlier) and then acknowledged that, in the circumstances of the provision of the Civil Procedure Act cited, there needed to be some relevant delinquency in the conduct of the proceedings (citing Harrison v Schipp [2001] NSWCA 13 (Harrison v Schipp) at [132]-[133] and Oshlack v Richmond River Council (1998) 193 CLR 72 at [44]) or some special or unusual feature in the case (citing Harrison v Schipp at [133]) for indemnity costs to be awarded pursuant to that provision. The submissions then set out, in summary, two bases upon which the Company advanced its argument for an indemnity costs order pursuant to this Notice of Motion. Those bases were that: 1. the Council had maintained its defence to these Class 1 proceedings when the Council should have known that it had no reasonable prospect of success (referencing Ritchie's Uniform Civil Procedure NSW at [42.5.7]) or the undue prolongation of a case by groundless contentions (citing Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233); and 2. the Company had made a number of offers to the Council seeking to resolve the proceedings. Those offers had been made in accordance with the principles in Calderbank v Calderbank (1975) 3 All ER 333 (Calderbank v Calderbank).
3. Before turning to the substantive matters raised by the Company in support of these two bases, it is appropriate to set out the summary provided in each instance in the written submissions as to why both of these bases provided an appropriate foundation for an indemnity costs order. These were set out at paragraphs 8 to 10 of the Company's submissions. These paragraphs were in the following terms (footnoted citations omitted): A. No Prospects 8 Courts have awarded indemnity costs where proceedings were maintained by a party without reasonable prospects of success, or when there were no reasonable prospects of success in the defence. 9 In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1998) 81 ALR 397, Woodward J stated: "I believe that it is appropriate to consider awarding 'solicitor and client' or 'indemnity' costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law." B. Calderbank Offer 10 Ritchie's Uniform Civil Procedure NSW states: "the settled principle in NSW is that a settlement/Calderbank offer may justify a special order for costs, including an order for costs on an indemnity basis, if the final judgment is no more favourable than the offer". That possibility depends on the Court's satisfaction that: a. the offer involved a genuine compromise; b. the rejection was unreasonable; and c. the offer sufficiently foreshadowed its use to support a special costs order.

Prospects for success

1. The Council had accepted that the Company's Subdivision Consent had not lapsed on 14 May 2020. The Subdivision Consent allowed development to occur in the area that was the subject of the IHO. The Council, however, maintained their defence that it had acted in accordance with the Ministerial Authorisation gazetted on 12 July 2013.
2. On 26 November 2020, the Council indicated that it considered the evidence contained in the affidavit of Ms Kliese, affirmed on 24 September 2020, did not demonstrate that the Company had any reasonable chance of success in the IHO proceedings.
3. During the hearing on costs on 1 February 2021, the Council conceded that: 1. the Subdivision Consent was covered by the definition of "development" in s 1.5 of the Environmental Planning and Assessment Act 1979 (the EPA Act); and 2. the Subdivision Consent, that had been granted by the Council, allowed development within the curtilage area as defined in the IHO.

No prospects of success

1. The Company's submissions set out, at paragraphs 17 to 21, why it was submitted that the Council had no prospects of success in these IHO proceedings. These paragraphs were in the following terms (footnote omitted): 17 In this context, there has never been any stated reason, or attempted explanation, why Council was justified in maintaining its defence to Proceedings, even after accepting that the Subdivision Consent remained in force. 18 The Court's reasoning and conclusion in the Costs Proceedings about the invalidity of the Interim Heritage Order necessarily means that Council's defence of the Proceedings did not have reasonable prospects, because the Interim Heritage Order had been invalidly made. 19 The Respondent's late concessions, at the beginning of the Cost Proceeding could also not be categorised merely as an exercise in responsible advocacy, if any such submission is advanced. It was belated, and the timing for it unexplained. 20 Had the Respondent made these appropriate concessions earlier in the Proceedings the Applicant would not have been put to significant costs on the unjustified defence. 21 Thus, the Respondent maintained a defence to the Proceedings that had no reasonable prospect of success. This alone is a sufficient basis for costs to be ordered on an indemnity basis.

The Company's offers

1. The Company's first offer was made on 4 May 2020. It proposed that the proceedings be discontinued on the basis that the Council agree "in principle" to pay the Company's costs of the proceedings.
2. The Company submitted that the offer was a genuine compromise, its rejection unreasonable, and paragraph 8 of the offer sufficiently foreshadowed its use as a basis for seeking a costs order, at paragraph 23 of the affidavit of Alyce Edith Kliese dated 24 September 2020 and paragraph 8 of Annexure M to it.
3. Paragraph 8 of the offer was in the following terms: 8 … rule 3.7 of the Land and Environment Court Rules 2007 (LEC Rules) provides that the Court is not to make and order for the payment of costs in Class 1 Proceedings unless the Court considers that the making of an order as to whole or any part of the costs is 'fair and reasonable in the circumstances'. In light of Council's actions we ask that you confer with Council and confirm in writing that Council will agree in principle to an order to pay the Applicant's costs of the proceedings.
4. This offer was rejected on 21 October 2020 by a letter from the Council's solicitors submitting a counter‑offer. This counter‑offer was sent on a "without prejudice" basis and proposed that the parties each pay their own costs with no order to be made as to costs of these IHO proceedings and of the DA proceedings. The counter‑offer also posited that the Council would be successful in getting the Company's Notice of Motion dismissed.
5. The Company submitted that the rejection of its offer was unreasonable, and the Council's counter‑offer did not constitute a genuine compromise.
6. The Company made a second offer to the Council on 22 October 2020, which was amended on 29 October 2020 (the revised second offer). The reason for the amendment was that the initial second offer did not include the costs associated with retaining the Company's Heritage expert. This revised second offer was summarised as being on the following terms (the precise details of the terms of this offer are set out in my later consideration of this offer): i The Respondent would pay the Applicant $53,600; and ii A Notice of Discontinuance with no order as to costs and would be filed by the Applicant with the consent of the Council
7. Annexure B to the affidavit of Ms Kliese of 8 December 2020 noted that: '[o]ur client considers that the offer provided in this letter is very generous and involves genuine compromise in order to resolve this dispute and prevent further costs from being incurred for both parties. The offer remains open until 5pm on Thursday 12 November 2020'.
8. As with the Company's first offer, the Company submitted that the offer was a genuine compromise; its rejection was unreasonable; and the offer foreshadowed the use of the offer as the basis for seeking a costs order. The letter noting, at paragraph 5 (Annexure A of Ms Kliese's affidavit dated 8 December 2020): 5 … This letter may be relied upon in relation to costs including in support of any application for costs, including indemnity costs, against your client from the date of this correspondence should the offer not be accepted, and your client not be successful at any future hearing in relation to these proceedings.
9. The Company submitted the Calderbank offers made to the Council were unreasonably rejected; offered genuine compromises; and "were bettered by the outcome of the costs' proceedings". Therefore, the Company submitted that the Court should use its discretionary power to award indemnity costs in the Company's favour. It is to be noted that this revised second offer was rejected by the Council by letter from its legal representatives of 12 November 2020.

Conclusion in the Company's submissions on this Notice of Motion

1. Prior to setting out the cascading alternative outcomes advanced by the Company on this Notice of Motion, it is appropriate to set out the two paragraphs in the Company's written submissions summarising why it proposes that there is a proper basis for varying the costs orders made in my February decision. These concluding paragraphs, paragraphs 32 and 33 of the Company's written submissions, were in the following terms: 32 The principal reason is that the Respondent maintained a defence to the Proceedings which did not have reasonable prospects of success. The concessions made by the Respondent during the Costs Proceedings necessarily flowed from its acceptance that the Subdivision Consent remained in force - and meant that the Interim Heritage Order was always liable to be found invalid. This meant the Respondent's defence of the Proceedings did not have reasonable prospects. 33 Secondly, the Applicant's offers: were made after the reasons why the Interim Heritage Order had been made contrary to the Ministerial Authorisation had been expressly pointed out (in the Applicant's Statement of Facts and Contentions on 1 April 2020 and again in correspondence on 4 May 2020); all involved a genuine compromise; were unreasonably rejected; and were bettered by the outcome of the Costs Proceedings. Further the use of the offers to support an application for a special costs order was sufficiently foreshadowed.
2. The Company proposed three cascading, alternative outcomes to this Notice of Motion (at paragraphs 34 to 36 of the Company's written submissions). Those alternative outcomes (with the primary position advanced on behalf the Company appearing first) were to the following effect: 34 In the circumstances, it is submitted that the Applicant's costs should be ordered to be paid in accordance with prayer 1 of the Applicant's Notice of Motion, being: a. on an indemnity basis the Applicant's costs of the proceedings; b. on an indemnity basis with respect to the costs of the Costs Proceedings (other than the costs associated with the preparation and/or copying of Government Gazette folios 3400 to 3420 and 3425 to 3496 of the annexures to the affidavit of Alyce Kliese dated 24 September 2020; and c. on an indemnity basis with respect to the costs of preparation and attendance of this motion. 35 In the alternative to prayer 1 of the Applicant's Notice of Motion, it is submitted that the Applicant's costs be payable in accordance with prayer 2 of the Applicant's Notice of Motion, being: a. on an ordinary basis up to and including 1 April 2020; b. on an indemnity basis from 2 April 2020 onwards, being the day after the date the Applicant filed and served its Statement of Facts and Contentions which notified Council, in contention 1, that the Interim Heritage Order was made contrary to the Ministerial Authorisation29; and c. on an indemnity basis with respect to the costs of preparation and attendance of this motion. 36 In the alternative to prayer 2 of the Applicant's Notice of Motion, it is submitted that that Applicant's costs be payable in accordance with prayer 3 of the Applicant's Notice of Motion, being: a. on an ordinary basis up to and including 12 November 2020; b. on an indemnity basis from 13 November 2020 onwards, being the day after the date the Applicant's revised second offer closed; and c. on an indemnity basis with respect to the costs of preparation and attendance of this motion.

Introduction

1. The written submissions for the Council commenced, as with the Company's written submissions, with a brief outline of the nature of the Class 1 proceedings and setting out the orders made by me in my February decision.
2. Ms Hammond's submissions on this Notice of Motion then addressed the Company's proposal that there should be an indemnity costs order in the Company's favour made in response to this Notice of Motion.
3. Ms Hammond's written submissions next set out a detailed chronology of correspondence between the legal representatives of the Company, and those of the Council, spanning the period between 4 May 2020 and 23 December 2020. It is unnecessary, at this time, to set out that chronology.
4. She then set out what she proposed were the two necessary tests requiring to be satisfied before there was any potential triggering of liability for a costs order on an indemnity basis (citing Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [8]) (Miwa). She submitted that those tests were: 1. there was a genuine offer of compromise, and 2. it was unreasonable for the offeree not to accept it.
5. Ms Hammond submitted that the Court should not exercise its discretion and award indemnity costs against it. Instead, the Council submitted that the Company should bear the burden of paying the Council's costs for the preparation and attendance for this Notice of Motion: at [3]-[4].

Rejection of the Company's offers

1. Ms Hammond submitted that the Council had not unreasonably rejected the Company's offers. She listed the factors that were identified in Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298 (Hazeldene's) at [25] (cited in Miwa at [12]) that are appropriate to be examined by a court when determining unreasonableness for rejecting an offer. These were: 1. the state of the proceeding at which the offer was received; 2. the time allowed for the offeree to consider the offer; 3. the extent of the compromise offered; 4. the offeree's prospects of success, assessed as at the date of the offer; 5. the clarity with which the terms of the offer were expressed; and 6. whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejection of it: at [8].
2. Ms Hammond complains of the inadequacy of the information made available by the Company's legal representatives. She advances the proposition that the Council did not have sufficient information given on behalf of the Company to enable the Council to have a sufficient understanding of the case which would have been advanced proposing that the IHO had not been made validly. This complaint was set out in paragraph 9 of her written submissions. In order to understand the basis of this complaint, it is appropriate to set out in full this paragraph of her written submissions: 9 The evidence before the Court establishes that there was a regular exchange of correspondence between the parties regarding settlement of the IHO Appeal, in which each party set out its position, and a number of settlement offers were put. The Council made plain in its letters of 14 May 2020, 13 July 2020 and 26 November 2020 its position that the subdivision consent did not permit harm or impact any relevant heritage items on the property, relying on the Non-Indigenous Heritage Assessment of August 2007 which expressly stated that no items of heritage significance would be directly impacted by the subdivision. At no time in any of its correspondence did the Applicant make clear the basis of its repeated statement that the subdivision consent was operational "and permits harm to the items that are the subject of the IHO". Similarly, Contention 1 in the Applicant's Statement of Facts and Contentions stated that the subdivision consent "permits the item to be harmed". However, it did not provide any particulars to illuminate the basis for that claim.
3. Ms Hammond's submissions noted that the first instance when the Council received any communication from the Company that "particularised its position" on "harm", including setting out the definition of "harm" in the Heritage Act was on 24 September 2020. This was also the first time that it became clear to the Council as to how the Company considered that the Subdivision Consent would harm the IHO curtilage area.
4. The Council did not have a clear understanding of the extent of the impact of the Company's proposed development on the IHO curtilage area until 11 December 2020. Therefore, it was submitted by the Council, that its rejection of the Company's offers was not unreasonable based on the fact that at no time before 11 December 2020 was the Council "in a position to properly assess the prospects of the Applicant's case, the prospects of its defence, and the reasonableness of the offer made": at [11].
5. The Company suggested that the Council's case was a lost cause for defending the Class 1 proceedings. The Council rejected that position: at [12].
6. The Council relied on a passage from the decision of O'Neill C in Li v Willoughby City Council [2018] NSWLEC 1262, at [30]-[31], which indicated that the Court could cure an invalidly made IHO. This would have allowed the Court to incorporate the curtilage area into the IHO. On such a basis, the IHO could have been amended to exclude works permitted by the Subdivision Consent.
7. The Council submitted, at paragraph 13, that: 13 It was not unreasonable for Council to have maintained its position that it had an arguable defence to the Class 1 Application.
8. Ms Hammond then turned to explaining why the Council submitted that the Company's offers were defective. She first addressed the Company's offer of 4 May 2020. She submitted that its defects were that it: 1. was not marked "without prejudice save as to costs"; 2. discussed the terms of the offer as being "in principle", lacked clarity and precision; 3. did not include a timeline for acceptance; 4. did not indicate that it aligned with the "principles in Calderbank v Calderbank"; 5. included no clear statement that the offer, if rejected, would be used as the basis for costs proceedings; 6. did not indicate that it might be used in seeking indemnity costs; and 7. did not include reasons why the offer should be accepted: at [14].
9. The Council submitted that the rejection of the Company's offer of 4 May 2020 was not unreasonable when Hazeldene's was applied: the offer was uncertain; it was not a proper Calderbank offer; and the Council was not in a position to accurately assess the Council's prospects of success because of the lack of particularisation of Contention 1 [in the Company's Statement of Facts and Contentions]: at [15].

Council's offer of 21 October 2020

1. The Council made an offer on 21 October 2020 to the Company. The terms of the offer stated, at [16]: The Council would settle the costs dispute if the Company withdrew its Notice of Motion; the Council would not pursue its costs thrown away in the Class 1 DA proceedings, and there would be no costs order for either proceeding.
2. Further, Ms Hammond submitted that, even though the Council's offer suffered some deficiencies similar to the Company's 4 May 2020 offer, the Court should not conclude that the Council's offer was unreasonable because of the offered foregoing of the costs thrown away in the DA proceedings.

Company's offers from 22 and 29 October 2020

1. Ms Hammond submitted that the 22 and 29 October 2020 offers received from the Company exhibited similar deficiencies to the offer made on 4 May 2020. The October offers were not marked "without prejudice save as to costs"; they were not made in reference to the Calderbank v Calderbank principles and no reasons were supplied from the Company as to why the offers should be accepted: at [18].
2. She submitted that because the offer was not in the proper form, the Council could not make an accurate assessment of its prospects for success. The latter arose from the lack of particulars that the Council submitted were wanting: at [19].

Submissions on procedural unfairness

1. Ms Hammond's written submission then addressed, under the heading "Procedural unfairness", the proposition that the Company had inappropriately (my word) brought this separate Notice of Motion seeking indemnity costs rather than in doing so using the vehicle of its earlier Notice of Motion dealt with by my February decision, that Notice of Motion seeking costs on an ordinary basis.
2. Her written submissions in this regard are appropriate to be set out in full. They were at paragraphs 20 to 24 in the following terms (footnote omitted): Procedural unfairness 20. The Applicant should have sought its costs on an indemnity basis when it made its application for costs by its Notice of Motion dated 24 September 2020. 21. Rule 18.6(1) of the Uniform Civil Procedure Rules states as follows: 18.6 Hearing of interlocutory applications A party's Notice of Motion in any proceedings must include, so far as practicable, all applications that the party desires to make in relation to the proceedings and that, having regard to the nature of the proceedings, can conveniently be dealt with at the one time. 22. There is no reason why the Applicant could not have made this application at that earlier time, and that procedural deficiency has not been explained. Both applications could have been dealt with at the same time, within the same day set aside for the earlier Notice of Motion. Most of the evidence relied upon in this Notice of Motion was filed in support of the earlier application, including all of the correspondence except for the letter dated 23 December 2020. 23. To make this application by way of a separate Notice of Motion is contrary to s 56(3) of the Civil Procedure Act 2005, which provides that a party is under a duty to assist the Court to further the overriding purpose - "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". The Applicant's failure to make this application together with its application for costs has caused the Council to incur further legal costs in defending this further Notice of Motion. 24. For those reasons, if the Court does decide to order that the Council pay the Applicant's costs on an indemnity basis, then the Council should not be ordered to pay the Applicant's costs of this Notice of Motion.
3. Ms Hammond summarised the Council's position as being that: 1. there has been nothing demonstrated by the Company that would convince the Court to award indemnity costs against the Council; 2. if the Court was to determine that indemnity costs were appropriate, then they should only be awarded from 11 December 2020, the date at which the Company filed written submissions; and 3. the Council should not be ordered to pay the costs of this Notice of Motion as this application could and should have been made at the same time as the Company's application giving rise to my February decision.

Introduction

1. To understand how this Notice of Motion is appropriate to be approached, it is necessary, first, to set out the summary of the Company's position on its costs of the proceedings dealt with in my February decision. At [37] of that decision, I set out the points advanced by Mr To in a series of short propositions. These were: ● the IHO that purported to be made by the Council was in breach of Sch 2(2)(d) of the Ministerial Order; ● this was because the 2008 subdivision consent operated to permit harm as defined to the identified heritage item, this being the relevant exclusionary element of the provision in the schedule; ● the first contention pressed by the Company in its Statement of Facts and Contentions in these proceedings expressly raised this invalidity; ● properly understood, it was inevitable that the Company would have succeeded in establishing the correctness of that contention and, hence, the invalidity of the IHO; ● establishing such a conclusion to the satisfaction of the decision-maker in these Class 1 proceedings would have necessitated the decision‑maker then concluding that the Company's appeal against the IHO should be upheld and that the Council's opposition was futile; ● such a finding was within power for a decision-maker in Class 1 proceedings and would not involve the necessity for any impermissible purported declaration‑making, declaration‑making being only permissible in Class 4 proceedings; ● the inevitability of the Class 1 decision-maker reaching that conclusion that the IHO was invalid did not require me, in these proceedings, to undertake any impermissible hypothetical merit hearing, contrary to the discussion by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6, (1997)186 CLR 622 (Lai Qin); and ● the above matters satisfied r 3.7(3)(f)(i) of the Court Rules, thus making it appropriate to make a costs order in these proceedings in favour of the Company.
2. it is not necessary to set out the entirety of my reasoning in my reaching the conclusion that the Company was entitled to a costs order pursuant to r 3.7(3)(f)(i) of the Court Rules. It is sufficient to set out what I said at [49] to [51] and [60]. These paragraphs from my February decision are in the following terms: 49 As these proceedings are in Class 1, the conventional civil litigation presumption that "costs follow the event" (r 42.1 of the Uniform Civil Procedure Rules 2005; Latoudis v Casey (1990) 170 CLR 534) does not apply. It is replaced by r 3.7(2) of the Court Rules, a provision which only permits costs in proceedings such as these to be awarded if it is "fair and reasonable" that this occur. This provision in the Court Rules sets out a non-exhaustive list of circumstances when it might be appropriate to make a costs order in such matters. Other instances also potentially arise (as discussed by Preston CJ in Grant v Kiama Municipal Council [2006] NSWLEC 70). 50 For present purposes, the Company relies on specific elements of r 3.7(2) of the Court Rules identified by Mr To in his written submissions at paragraph 15. These elements were r 3.7(3)(c), (d) and (f). 51 I am satisfied that the chain of reasoning advanced for the Company, founded on Contention 1 of its Statement of Facts and Contentions of 1 April 2020 (as earlier summarised in setting out Mr To's chain of reasoning) is correct. I have so concluded for the reasons which he advanced. As a consequence, I have concluded that the Company has established, pursuant to r 3.7(3)(f)(i), a proper basis for a costs order in its favour. … 60 In these proceedings, for the reasons earlier explained, I am satisfied that the necessary jurisdictional gateway in Sch 2(2)(d) was shut, giving rise to the position that the Council did not have jurisdiction to make the IHO. This, in turn, means that it is fair and reasonable to make a costs order in the Company's favour because the Council's defence had no reasonable prospect of success (r 3.7(3)(f)(i) of the Court Rules).
3. I have earlier set out the relevant terms of s 98 of the Civil Procedure Act and r 3.7 of the Court Rules. In Class 1 proceedings, they work together. This is because the s 98(1) makes the operation of that provision "subject to rules of court".
4. Unfortunately, neither set of written submissions on this indemnity costs' Notice of Motion addressed the operation of r 3.7 of the Court Rules, a rule fundamental to my February decision and a provision critical to a proper appreciation of, and rejection of, what is described by the Company as, the principal basis upon which indemnity costs should be awarded in its favour.
5. The Company's Notice of Motion with which I am now dealing entirely ignores the significant restriction that is placed on costs applications in Class 1 proceedings by the operation of r 3.7 of the Court Rules as creating a distinctly different first‑step costs' regime in such proceedings. Such a costs' regime is founded relevantly on what is known as the "no discouragement principle" for development merit appeals (Port Stephens Council v Sansom (2007) 156 LGERA 125; [2007] NSWCA 299 at [22]-[23]).
6. The submissions made on behalf of the Company, on this Notice of Motion as proposed and as set out at [35], that the principal basis upon which it seeks an indemnity costs order is "that the Respondent maintained a defence to the Proceedings which did not have reasonable prospects of success".
7. I have earlier set out the relevant paragraphs from my conclusion in my February decision, explaining why costs on an ordinary basis were appropriate to be ordered in the Company's favour based on the operation of r 3.7(3)(f)(i), a provision giving the following basis for such an order: … that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where - i) the claim or defence (as appropriate) did not have reasonable prospects of success,
8. This provision is, effectively, in the same terms as what is now said to be the principal basis upon which the Company proposes it should be the beneficiary of an indemnity costs order arising out of this Notice of Motion. This proposition is fundamentally flawed - as to adopt it as a basis to moving to award indemnity costs would be to ignore the relevant operative effect of the provision of the Court Rules which provided a foundation for the Company receiving an ordinary basis costs order resulting from my February decision. To use this as a basis would permit the Company to be rewarded, by double‑dipping, by imposing an additional costs burden on the Council on a mere repetition of what I had already determined was the basis upon which to make the earlier ordinary costs order.
9. However, the operative effect of r 3.7 of the Court Rules does not limit such costs to costs on an ordinary basis (as to do to do so would oust entirely the operative effect of s 98(1) of the Civil Procedure Act rather than having it work harmoniously with r 3.7 of the Court Rules). It is thus appropriate that I turn to consider whether, in light of the costs' outcome after the application of r 3.7 of the Court Rules for the reasons set out in my February decision, non‑acceptance of the first offer and/or the revised second offer made by the Company would provide an appropriate basis for such an order.

The Company's first offer

1. I now turn to consider what was relied upon for the Company as constituting an offer set out in the letter from the Company's legal representatives to those of the Council of 4 May 2020. The letter is in evidence as Annexure M to Ms Kliese's affidavit of 24 September 2020. That letter sets out, under the heading "Next steps", two paragraphs that are said to constitute the terms of the Company's offer to the Council. Those paragraphs were in the following terms: Our client agrees that the proceedings should be discontinued. However, it is apparent that Council has pursued an IHO and permitted the proceedings to continue in circumstances which should have never occurred. As you are aware, rule 3.7 of the Land and Environment Court Rules 2007 (LEC rules) provides that the court is not to make an order for the payment of costs in Class 1 proceedings unless the court considers that the making of an order it as to whole or any part of the costs is fair and reasonable in the circumstances. In light of Council's actions, we ask that you confer with Council and confirm in writing that Council will agree in principle to an order to pay the applicant's costs of the proceedings.
2. I have earlier set out, at [49], the seven reasons advanced by Ms Hammond, in her written submissions at paragraph 14, as to why the Council's letter of 4 May 2020 did not constitute a Calderbank offer.
3. Ms Hammond had also set out, as noted at [42], factors cited with approval by the Court of Appeal relevant to determining whether the rejection of an offer was unreasonable. At paragraph 15 of her written submissions, she explained why the Council's rejection of that offer should be regarded as not being unreasonable, writing: 15. Applying the factors in Hazeldene's Chicken Farm, rejection of that offer was not unreasonable because the offer was uncertain and was not a proper Calderbank offer, and the Council was not in a position to assess the prospects of success of its defence at that point in time given the lack of particularisation of the Applicant's Contention 1.
4. To enable a proper understanding of what is in Ms Hammond's paragraph 15 as set out above, it is necessary to have regard to both Contention 1 in the Company's Statement of Facts and Contentions filed on 1 April 2020 (Annexure K to Ms Kliese's affidavit of 24 September 2020 and to paragraphs 3 to 6 of the Company's legal representatives' letter of 4 May 2020.
5. Contention 1 in the Company's Statement of Facts and Contentions was in the following terms: 1. Existing Development Consents The IHO has been made in circumstances where development consents have been granted and are in force, contrary to the Ministerial Authorisation. Particulars a) Schedule 2 of the Ministerial Authorisation requires that "a council must not make an IHO where… a development consent (other than a complying development certificate), has been granted in relation to the item that permits the item to be harmed, and the development consent is still in force". b) The development consent number 539/0607/DA for a rural subdivision with staged release (the Subdivision Consent) was granted, permits the item to be harmed, and is still in force. c) The development consent number 45/1011/MOD modified the Subdivision Consent, was granted, permits the item to be harmed, and is still in force. d) The development consent number DA/0180/1011 for alterations and additions to the existing dwelling at 14597 Hume Highway, Marulan, was granted, permits the item to be harmed, and is still in force.
6. Paragraphs 3 to 6 of the Company's legal representatives' letter of 4 May 2020 were in the following terms: 3 We have now had the opportunity to review the documentation provided by Council on 24 April 2020. In doing so it has come to our attention that the subdivision consent has not lapsed and Council wrote to our client's representative to confirm this on 21 January 2013. In this regard we bring to your attention the following documents: (a) the letter dated 16 January 2013 from LandTeam Australia Pty Limited to Council requesting confirmation from the Council. The physical commencement had occurred with respect to the subdivision consent. A copy of this correspondence is enclosed at Annexure C. (b) the letter dated 21 January 2013 from the Council to LandTeam Australia Pty Limited, confirming that development consent had not lapsed as physical commencement had occurred with respect to the subdivision consent. A copy of this correspondence is enclosed at Annexure D. 4 Council implemented the IHO over our client's property subject to the instrument of delegation published in NSW Government Gazette No 90 on 12 July 2013 (the Ministerial Authorisation). The Ministerial Authorisation is subject to the conditions set out in Schedule 2, and states: (2) A Council must not make an IHO where: … (d) a development consent (other than a complying development certificate, has been granted in relation to the item that permits the item to be harmed, and the development consent is still in force; or … 5 As you are aware, the IHO applies to curtilage which is now shown edged heavy red on the plan catalogued with the IHO. The subdivision consent permits the construction of a 20 m wide road through this curtilage area and thereby harming the subject matter of the IHO including the curtilage area, the dwelling and barn complex, and the property more generally. 6 Given that the subdivision consent permits the item to be harmed and is still in force, Council has acted contrary to the Ministerial Authorisation in issuing the IHO. Furthermore, the Council is done so with knowledge that the subdivision consent was granted, permits the item to be harmed, and is still in force.
7. However, the offer which was advanced for the Company in the letter from its legal representatives of 4 May 2020 can be dealt with in short compass.
8. As can be seen from the terms of the letter set out above, it proposed that the Council agree "in principle" that the Council should pay the Company's costs of the IHO proceedings. That proposition lacks specificity and does not constitute an offer couched in terms of sufficient precision to be able to be accepted in order to bring the proceedings to a conclusion.
9. Had the Council been minded to move to settlement on that basis, the inevitable next step would have necessitated an enquiry of the Company's legal representatives as to the quantum of those costs, followed by, also inevitably, negotiation on quantum.
10. This lack of precision (even if all other necessary preconditions were satisfied - matters which are unnecessary to explore for present purposes) precludes that which was advanced by the letter of 4 May 2020 as constituting an offer capable of providing a foundation for a claim for indemnity costs of the IHO proceedings.

A necessary response to Ms Hammond's criticisms

1. I have earlier summarised, at [53] and [54], Ms Hammond's submissions concerning the letters of offer on behalf of the Company dated 22 and 29 October 2020. To enable a proper understanding of my consideration of her submissions concerning these letters, it is appropriate to set out, in full, the terms of paragraphs 18 and 19 of her written submissions. These paragraphs were in the following terms: The Applicant's offers of 22 and 29 October 2020 18. The Applicant's offers of 22 and 29 October 2020 also contained a number of deficiencies, as follows: a. it was not marked "without prejudice save as to costs"; b. it did not make reference to the "offer" being one in accordance with the principles in Calderbank v Calderbank; c. the Applicant did not give reasons why the offer should be accepted. 19. Council's rejection of that offer was not unreasonable because the offer was not in the proper form of a Calderbank offer, and the Council was not in a position to assess the prospects of success of its defence at that point in time given the lack of particularisation of the Applicant's Contention 1.
2. It is appropriate to note that the letters of 22 and 29 October 2020 should be regarded as working together (as appears to be accepted by Ms Hammond). This position is clear because: 1. The letter of 29 October 2020 refers, in paragraph 2(b), to the letter of 22 October 2020; 2. Paragraph 5 of the letter of 29 October 2020 merely withdraws the offer contained in the letter of 22 October 2020 and does not withdraw the entirety of the reasoning which is contained in the earlier letter; 3. Paragraph 6 sets out the terms of the revised second offer, being an offer amended for reasons of mathematical adjustment as explained by paragraphs 3, 4 and 5 of the 29 October 2020 letter; and 4. Given that the letter containing the revised second offer is dated a week later than that containing the second offer, paragraph 7 of the letter of 29 October 2020 extends by a further week, until 5.00 pm on Thursday 12 November 2020, the time within which the Council could choose to accept the revised second offer.
3. In the context of the letters of 22 and 29 October 2020 working together, it is appropriate, now, to set out in full, the terms of paragraph 5 of the letter of 22 October 2020 from the Company's legal representatives to those of the Council. This paragraph is in the following terms: 5 In the interests of avoiding further costs being incurred, and in an effort to conclude the dispute between our clients, we have been instructed to make an offer to your client. This letter may be relied upon in relation to costs including in support of any application for costs, including indemnity costs, against your client from the date of this correspondence should the offer not be accepted, and your client not be successful at any future hearing in relation to these proceedings.
4. The criticisms made by Ms Hammond in paragraph 18(a) and (b) are ones which are factually correct. However, although those criticisms are valid, they only have the effect of not permitting that which is clearly able to be seen as being an open offer being made for the Company (in the numerical terms set out in paragraph 6 of the letter of 29 October 2020 and subject to the extended period for acceptance set out in paragraph 7 of that letter) as being one made in accordance with the principles of Calderbank v Calderbank.
5. For the reasons set out in paragraph 5 of the letter of 22 October 2020, this offer process across the two letters is capable of founding a claim for indemnity costs but not one founded on the principles of Calderbank v Calderbank.
6. As has been earlier set out, s 98(1)(c) of the Civil Procedure Act vests me with a discretion, to be exercised judicially, to award costs on an indemnity basis.
7. The rejection of a settlement offer (whether a Calderbank offer or an open offer being irrelevant for this purpose) can provide a proper foundation for the awarding of indemnity costs subject to consideration of factors earlier set out in [42], as identified in Ms Hammond's written submissions.
8. It is to be observed that, because a proper understanding of the terms of the correspondence and the context of the letters of 22 and 29 October 2020 working together did not seek to hold out the revised second offer as being one made as a Calderbank offer but was, in truth, an open offer, the complaints made by Ms Hammond in her paragraph 18(a) and (b) are to be rejected.
9. I now turn to Ms Hammond's complaint in paragraph 18(c) of her written submissions. In this context, it is to be observed that paragraph 3 of the Company's legal representatives' letter of 22 October 2020 is in the following terms: 3. As you are aware, there is a concluded view between the parties that the proceedings should be discontinued. However, it is our client's position that Goulburn Mulwaree Council (Council) has pursued an interim heritage order and permitted the proceedings to continue in circumstances which should never have occurred, as set out in our previous correspondence.
10. This paragraph needs to be understood in the context of what had earlier been put for the Company in correspondence to the Council's legal representatives concerning the Company's complaint relating to the IHO. This complaint is also to be seen to be informed by Contention 1 in the Company's Statement of Facts and Contentions filed on 1 April 2020.
11. Whether these, taken together, provide sufficient explanation to the Council for it and its advisers to understand why it was considered that the Company would inevitably succeed in the IHO proceedings is a matter requiring later consideration and determination.

The terms of the revised second offer

1. First, it is to be noted that paragraphs 3 and 4 of the letter of 29 October 2020 (containing the revised second offer) from the Company's legal representatives to those of the Council explained that the reason why the offer of 22 October 2020 had been revised. The letter is at Annexure B to Ms Kliese's affidavit of 8 December 2020.
2. It is not necessary to repeat the terms of those paragraphs or any of the material contained in the offer letter of 22 October 2020. It is appropriate to set out the terms of paragraphs 5 to 7 of the letter of 29 October 2020. These paragraphs were in the following terms: 5 In light of the matters explained paragraphs 3 and four above, we withdraw the offer contained in the offer letter and make a further offer for Council's consideration. 6 Our client makes the following offer able to be accepted in full: (a) Council is to pay the applicant to the proceedings $53,600, which comprises: (i) $58,600, being approximately 80% of the costs incurred by our client at the date of this letter; (ii) less $5000, being the estimated costs thrown away by the Council for reviewing amended documentation in proceedings number 2019/382223 relating to the refusal of development application DA/0335/1819, (b) the motion be withdrawn; and (c) the applicant file a notice of discontinuance with no order as to costs, with the consent of the Council. 7 Our client considers that the offer provided in this letter is very generous and involves genuine compromise in order to resolve this dispute and prevent further costs being incurred for both parties. The offer remains open until 5 PM on Thursday, 12 November 2020.

The Council's rejection of the revised second offer

1. By letter dated 12 November 2020, the Council's legal representatives advised those of the Company that the offer of 29 October was rejected. The letter is at Annexure C to Ms Kliese's affidavit of 8 December 2020. The letter is brief and was in the following terms: 1 We refer to the Notice of Motion filed in the above proceedings on behalf of the applicant on 24 September 2020 (Notice of Motion) together with your correspondence dated 29 October 2020. 2 Council rejects the applicant's offer contained in your letter of 29 October 2020. 3 Council is of the firm view that the applicant is not entitled to any of the costs sought in the Notice of Motion.

Addressing the revised second offer

1. The terms in which the Company's revised second offer is couched require to be addressed against the matters earlier set out by Ms Hammond as arising from Hazeldene's, given that the contents of paragraph 6 of the 29 October 2020 letter set out what is, in form, generally consistent with what might be expected of such an offer.
2. It is, therefore, necessary to examine and test the various elements contained in this offer and, more broadly, the background context of exchanges of information between the parties (particularly the extent to which the Company's case in the IHO proceedings had been revealed to the Council's legal representatives). The matters to be examined are: 1. The extent and reasonableness of the financial compromise embodied in the offer; 2. The information context in which the offer was made; 3. The period of time allowed to the Council within which to consider and respond to the offer; and 4. The extent of the Company's success measured against the revised second offer.

The extent of the compromise offered

1. There are two separate financial elements embodied in the terms of the Company's revised second offer. The Council is offered a 20% discount on the actual costs incurred on behalf of the Company as at the date of making the offer and, second, an allowance of $5,000 proposed by the Company as an offset for the costs to which the Council would be entitled pursuant to s 8.15(3) of the EPA Act if the DA proceedings were subsequently settled and a costs order made (as occurred on 12 November 2020 - see O'Neill C's order (2) in Twynam Investments Pty Ltd (formally known as Twynam Agricultural Group Pty Ltd) v Goulburn Mulwaree Council [2020] NSWLEC 1557). Each of these financial elements requires consideration.
2. First, it is to be observed that the letter of 29 October 2020 provides a sufficient explanation to enable the Council and its legal advisers to understand the derivation of the total sum of $73,240.33 (excluding GST) set out as being the Company's costs as at the time of making the revised second offer. The letter also adequately explains why the costs outlined in that letter had been revised upwards compared to the costs' quantum advised in the letter for the Company, dated 22 October 2020, which had contained the original terms of the Company's second offer.
3. The Company's revised second offer next proposed a discount of 20% on the extent of the costs that had been incurred by the Company as at that date. Whilst, had the Company been seeking a gross sum costs order founded on that level of incurred costs, a discount of 25% to 40% would generally have been appropriate (Law of Costs, G E Dal Pont, LexisNexis, 4th ed, 2018, at page 518) this is not the circumstance within which this offer is to be examined. The discount offered amounted to ~$14,600 and is of a sufficient percentage scale and actual monetary amount for it to be regarded as reasonable in the circumstances.
4. It is to be noted that, in the letter for the Council rejecting the offer, no complaint is made as to the adequacy of the concession proposed on the Company's behalf. Similarly, no such complaint is made in subsequent correspondence for the Council, nor is any complaint of this nature now raised by Ms Hammond in her submissions on this Notice of Motion.
5. The second financial aspect to be considered is the discount of $5,000 proposed by the Company to reflect costs' matters in the Council's favour arising out of the separate Class 1 DA proceedings. As with the 20% discount element discussed above, in the letter for the Council rejecting the offer, no complaint is made as to the adequacy of the concession proposed on the Company's behalf. Similarly, no such complaint is made in subsequent correspondence for the Council; nor is any complaint of this nature now raised by Ms Hammond in her submissions on this Notice of Motion.
6. I have not found anything in any of the correspondence in evidence that would cause me to conclude that this estimate by the Company's legal representatives was unreasonable.
7. As a consequence, I am satisfied that the extent of the financial compromise held out by the revised second offer was of sufficient extent to provide a foundation for an indemnity costs order based on the non-acceptance of these financial compromises.

The adequacy of information about the Company's IHO case

1. Before turning to consider the precise terms of the Company's revised second offer, it is now appropriate to return to address the element of Ms Hammond's submission in paragraph 18(c) that "the Applicant did not give reasons why the offer should be accepted".
2. I am unable to accept, for the purposes of my consideration of this offer made on behalf of the Company, that it had not been supported by sufficient information explaining the nature of the Company's case in these IHO proceedings. The proposition advanced by her that the only basis for understanding the Company's case was to be found in Contention 1 of the Company's Statement of Facts and Contentions of April 2020 is untenable.
3. The information available to the Council concerning the basis for the Company's challenge to the IHO includes all of the relevant material advanced on the Company's behalf in the whole range of correspondence from the Company's legal representatives to those of the Council. Expressly, this includes paragraphs 3 to 6 of the letter on behalf of the Company of 4 May 2020 earlier set out.
4. Although not provided in a single, compendious summary in the letters of 22 and 29 October 2020, sufficient information had been provided during the earlier exchange of correspondence to constitute an adequate outline of the Company's case concerning the invalidity of the IHO.
5. The proposition that the Council had not been provided with sufficient information to be able to understand the nature of the Company's case concerning the asserted defects in the making of the IHO is not to be accepted.

The timing of the second offer and the revised second offer

1. The second offer (and the revised second offer) were made at a time when a conciliation conference in the DA proceedings was imminent (for the second offer) or had been completed (for the revised second offer). The imminence, or completion, of this process made it reasonable that the Company make an offer to the Council in order to settle the IHO proceedings.
2. Indeed, the allowance in the revised second offer of a compensatory amount to the Council for the costs thrown away as a result of the plan amendment process in the DA proceedings demonstrates that the Company held, at the time of the second offer, a realistic expectation that the DA proceedings would settle and that the IHO proceedings would no longer require to be carried through to completion.
3. This is self-evidently the position for the revised second offer - given that the parties had, at that time, reached agreement that it was appropriate that the IHO proceedings be discontinued.
4. For these reasons, it is clear that the second offer and the revised second offer were both made at an appropriate time in these proceedings.

The time period for acceptance of the revised second offer

1. I have earlier set out the terms of the letter of 12 November 2020 from the Council's legal representatives to those of the Company, this being the letter by which the Company's revised second offer was rejected by the Council. As can be seen from the terms of that letter, no complaint is made that the period of 15 days, during which the Company's offer remained open for acceptance, was an inadequate one. No complaint of this nature is shown in any correspondence from the Council's legal representatives after the expiry date of the revised second offer. Ms Hammond's submissions, similarly, make no complaint about the duration for which this offer was open to be accepted.
2. There is no matter of first principle that would suggest that the period of 15 days for acceptance of the offers could be regarded as being unreasonably short. There is, thus, no timing flaw arising which would exclude the Company's reliance on the revised second offer as here proposed.

The Company's success measured against the revised second offer

1. There are two aspects to be taken into account in considering whether or not the revised second offer comprised a sufficient compromise on what could be expected to be the costs' outcome in the Company's favour arising from the costs order I made in my February decision.
2. The first is that, in the revised second offer, the Company made allowance for the Council's entitlement to costs thrown away in the DA proceedings as a consequence of the Company's reliance on an amended development application in those proceedings. That costs' entitlement for the Council obviously arose because of the agreement reached during the conciliation conference held by O'Neill C on 28 October 2020 (the day before the revised second offer was made to the Council's legal representatives), even though the orders formalising the agreed outcome from the conciliation conference were not made by the Commissioner until 12 November 2020.
3. The Council's costs entitlement in the DA proceedings was a statutory one arising as a consequence of the operation of s 8.15(3) of the EPA Act. However, those DA proceedings were separate from these IHO proceedings and there was no necessity, in any legal sense, to bundle costs' elements of the DA proceedings into those of these IHO proceedings (it is to be accepted, however, that, as a matter of practicality, such an approach was self-evidently desirable).
4. The 29 October 2020 letter conveying the revised second offer set out the extent of the costs incurred by the Company, as at that date, and proposed a 20% discount on those costs as a "sweetener" for acceptance of the offer. That discount was, in itself, not insignificant.
5. After the date of the revised second offer, the Company would have incurred further costs in preparation for the hearing which was held on 1 February 2021. That would not only have encompassed direct costs by the Company's legal representatives for that preparation, but also the costs of Mr To, the Company's counsel, in preparing for the hearing; writing the written submissions which were provided at the hearing; and appearing at the hearing. These costs would not have been incurred had the revised second offer been accepted.
6. Although it is likely that the costs which would arise to be paid by the Council following from any costs assessment process arising from my February costs order might have moderated, to at least some extent, the actual costs incurred by the Company, I am satisfied that such moderation as might have occurred would not have been so significant as to render the extent of the compromise embodied in the revised second offer as not constituting sufficient compromise to trigger the potential for an indemnity costs order as is here sought.

Conclusion on indemnity costs

1. The foregoing demonstrates that the revised second offer for the Company provides a basis upon which to make an indemnity costs order running from 13 November 2020 and covering the costs of the proceedings up to, and including, the hearing giving rise to my February decision (except as to the particular photocopying costs to be excluded).

The costs of this costs motion

1. Costs of costs applications in Class 1 proceedings such as these usually follow the event. The event is the outcome determined in the proceedings, here the Company's Notice of Motion seeking that all or part of its costs be paid on the indemnity basis. Although the Company has not had success in obtaining an order in terms of the first or second of the cascading outcomes proposed in its Notice of Motion seeking costs on the indemnity basis, nonetheless, the Company has had significant success - being the ordering of the Council to pay the Company's costs on the indemnity basis from 13 November 2020 onward.
2. Nothing was advanced on behalf the Council proposing that there should be any moderation of what the conventional costs' outcome in the event would be if the Company was not successful on the primary positions sought by the motion. There is no basis upon which I could conclude that the costs of this Notice of Motion were in any fashion increased by the way the Company has structured the outcomes it sought.
3. Costs of costs hearings are conventionally ordered to be paid on an ordinary basis and there is nothing in the present circumstances which would warrant departure from this position.
4. I have earlier explained why Ms Hammond's complaint that the process here adopted for the Company has not been procedurally unfair but, on the contrary, was necessary. That complaint provides no basis to depart from considering what should be the costs outcome arising from the Company's success in obtaining an order that its costs be paid on the indemnity basis from 13 November 2020 onward.
5. The Company is to have its costs of this costs motion as agreed or assessed.

Orders

1. The orders of the Court, therefore, are: 1. The Respondent is to pay the Applicant's costs of the proceedings (other than the costs associated with the preparation and/or copying of Government Gazette, folios 3400 to 3420 and 3425 to 3496 of the annexures to the affidavit of Alyce Kliese dated 24 September 2020): 1. on an ordinary basis up to and including 12 November 2020; and 2. on the indemnity basis from 13 November 2020 onwards; 1. The Respondent is to pay the Applicant's costs of this costs motion as agreed or assessed; 2. The costs referred to in these orders shall be paid within 28 days of agreement or certificate of determination of assessment, as the case may be; and 3. The exhibits are returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 May 2021