Supreme Court New South Wales Medium Neutral Citation: Central Coast Council v Pastoral Investment Land & Loan Pty Ltd (No 2) [2020] NSWSC 1039 Hearing dates: On the papers Date of orders: 7 August 2020 Decision date: 07 August 2020 Jurisdiction: Equity Before: Darke J Decision: Order that each party bear its own costs of the proceedings. Catchwords: COSTS – plaintiff's claim and defendant's cross-claim dismissed – evidence and time taken at hearing was divided approximately equally between the claim and the cross-claim – late amendments by plaintiff resulted in additional hearing time being required – whether plaintiff should bear all of those additional costs – whether appropriate to order that each party bear its own costs of proceedings Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Cases Cited: Central Coast Council v Pastoral Investment Land & Loan Pty Ltd [2020] NSWSC 777 Category: Costs Parties: Central Coast Council (Plaintiff/Cross-Defendant) Pastoral Investment Land & Loan Pty Ltd (Defendant/Cross-Claimant) Representation: Counsel: Mr R D Marshall SC with Mr E A Walker (Plaintiff/Cross-Defendant) Mr J R Young with Mr M F Fozzard (Defendant/Cross-Claimant) Solicitors: Central Coast Council (Plaintiff/Cross-Defendant) John A Diacopoulos (Defendant/Cross-Claimant) File Number(s): 2019/65014 Publication restriction: None Judgment 1. On 19 June 2020 judgment was delivered in these proceedings between the plaintiff/cross-defendant ("the Council") and the defendant/cross-claimant ("PILL") (see Central Coast Council v Pastoral Investment Land & Loan Pty Ltd [2020] NSWSC 777). 2. At [81] of the earlier judgment it was concluded: For the reasons set out above PILL has failed in its challenges to the validity and enforceability of the Deed of Agreement, and the Council has failed on its claim for specific performance of the Deed of Agreement. The Further Amended Statement of Claim should be dismissed. So, too, should the Cross-Claim. In these circumstances, and given that the evidence and time taken at the hearing was divided roughly equally between the Council's claims and PILL's claims, it seems appropriate that each party bear its own costs of the proceedings. The Court will make that order unless either party indicates within 7 days that some other order is to be sought. In that event, directions will be made to facilitate the determination of any question of costs. 1. PILL indicated that a different costs order was sought and, as envisaged, the parties have provided written submissions. Neither party suggested that an oral hearing was necessary, so the question of costs will be dealt with on the papers. 2. The Council does not seek any departure from the order foreshadowed by the Court. However, PILL seeks costs orders to the effect that the Council pay its costs of the proceedings from 19 February 2020 on an indemnity basis, or alternatively on the ordinary basis. In brief, PILL contends that the Council should bear those costs because all of the costs incurred after 19 February 2020 were the result of the Council being granted a late indulgence to amend its claim (which ultimately failed) to raise new arguments based on certain alleged implied terms. It was submitted that all costs incurred after 19 February 2020 were wasted. 3. It may be accepted that, absent the amendment application made on 19 February 2020 in the course of closing submissions, the hearing would have concluded on that, the third, day. As it happened, a further hearing day was required on 3 June 2020, and a directions hearing was earlier required on 9 April 2020. It may also be accepted that, as submitted by PILL, its Cross-Claim was "not further litigated after 19 February 2020". That is to say, the further hearing after that date was concerned with the claims of the Council, upon which it failed. 4. Nevertheless, it remains the position, in my view, that the time taken at the hearing overall was divided roughly equally between the Council's claims and PILL's claims. I do not accept the submission of PILL that this is only true in respect of the period up to 19 February 2020. It cannot be overlooked that PILL's Cross-Claim, as pleaded, raised a great many claims, many of which were abandoned or no longer pressed during the course of the hearing. I note further that a substantial part of the second day of the hearing was lost due to the unavailability of PILL's leading counsel. Moreover, it does not follow, from the fact that costs incurred after 19 February 2020 concerned claims which failed, that those costs were wasted. 5. It is also relevant to note that PILL has the benefit of orders made on 19 February 2020 and 14 May 2020 that the Council pay its costs of and occasioned by (or thrown away by reason of and/or incidental to) amendments made to the Council's Statement of Claim. To some extent therefore, PILL's costs from 19 February 2020 are already recoverable from the Council. That is of course a matter for assessment unless the parties can reach an agreement. 6. Finally, it is my view that whilst the Council's amendment applications were made at a very late stage, I do not regard the conduct of the Council in relation to the amendments, or its conduct of the proceedings more generally, to be unreasonable or delinquent in such a manner as may warrant an order for indemnity costs. 7. In all the circumstances, it is preferable, in my opinion, to maintain a broad approach that views the proceedings as a whole, rather than as a number of segments. When that is done, it seems to me that the appropriate exercise of the Court's discretion as to costs under s 98 of the Civil Procedure Act 2005 (NSW) is to order that (aside from existing costs orders), each party bear its own costs of the proceedings. Each party was in essence equally successful, or unsuccessful, depending upon one's point of view. It would of course be open to the Court to instead order that the Council pay the costs of its claim, and PILL pay the costs of its Cross-Claim. However, an order in those terms would invite arguments as to what parts of the costs incurred are properly attributable to the Council's claim and what parts are properly attributable to PILL's Cross-Claim. 8. For the above reasons, the Court will order that, aside from existing costs orders, each party bear its own costs of the proceedings. ********** 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: 07 August 2020