Fulton Hogan Pty Ltd v Blacktown City Council [2020] NSWLEC 169

Land and Environment Court New South Wales

Medium Neutral Citation: Fulton Hogan Pty Ltd v Blacktown City Council [2020] NSWLEC 169 Hearing dates: 21 October 2020 Date of orders: 3 December 2020 Decision date: 03 December 2020 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [174] Catchwords: COSTS - Applicant discontinues Class 1 merit appeal on the basis Respondent's costs are reserved - Respondent applies for costs order for the whole proceedings on three bases - first basis was that it was "fair and reasonable", pursuant to r 3.7(3)(f) of the Land and Environment Court Rules 2007 (the Court Rules) to make such an order as the Applicant's merit proceedings were "doomed to fail" - Applicant's modification application sought a mixture of changes addressing, in part, contributions levied by the Council for drainage works (and paid to the Council) and, in part, merit matters concerning conditions of development consent - Respondent raises merit matters in the original Statement of Facts And Contentions and additional merit matters in an Amended Statement of Facts And Contentions - not appropriate to contemplate undertaking a hypothetical merit assessment, contrary to Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 (Lai Qin) - even if appropriate to contemplate a hypothetical merit assessment, there was no evidentiary basis to do so with respect to merit matters pleaded by the Respondent - whether the central issues in the proceedings were legal issues - significant issues in the proceedings were legal ones but there were also significant merit issues pleaded by the Respondent as impediments to the application - r 3.7(3)(a) of the Court Rules not a basis for making a costs order in favour of the Respondent - third basis was that discontinuance was "an effective surrender" - failure of Applicant to explain discontinuance - additional merit matter pleaded by the Respondent in its amended contentions - no basis to conclude that discontinuance was an effective surrender without undertaking hypothetical trial of the merit matters pleaded by the Respondent in its contentions (including its amended contentions) - not appropriate to undertake such a hypothetical merit assessment contrary to Lai Qin - not appropriate to conclude that the Applicant had effectively surrendered - no general costs order appropriate COSTS - Respondent proposes limited costs order in two parts, if unsuccessful in general, costs application - Respondent seeks costs of preparation for, and hearing of, Notice of Motion to vacate conciliation conference - Notice of Motion not confined to vacation of conciliation conference as Respondent also sought leave to rely upon Amended Statement of Facts And Contentions - no dilatory conduct on behalf of Applicant in timing of agreement to vacation of conciliation conference - no basis for alternative costs order concerning Notice of Motion preparation and hearing - Respondent also seeks costs associated with evidence preparation between hearing timetabling and Applicant's discontinuance - timetabling of evidence preparation directions made – the evidence in preparation included expert evidence addressing merit matters pleaded by the Respondent - conventional pretrial process for Class 1 merit appeal - no basis for second element of alternative costs order - no alternative costs order appropriate COSTS - costs of costs applications usually follow the event - if unsuccessful in primary costs applications, Respondent seeks exclusionary costs order with respect to evidence provided by the Applicant's legal representatives - proper basis for provision of documentary evidence by Applicant's legal representatives - no basis to make any general exclusionary costs order concerning evidence by Applicant's legal representatives - some elements of one exhibit involved unnecessary photocopying - costs of unnecessary photocopying excluded from costs order in favour of the Applicant for the costs application Legislation Cited: Land and Environment Court Act 1979, s 34 Land and Environment Court Rules 2007, r 3.7 Uniform Civil Procedure Rules 2005, r 42.1 Cases Cited: Arden Anglican School v Hornsby Shire Council (2008) 158 LGERA 224; [2008] NSWLEC 103 H & W Pty Ltd v Lane Cove Council [2010] NSWLEC 87 Iris Diversified Property Pty Ltd v Randwick City Council (2010) 173 LGERA 240; [2010] NSWLEC 58 Karimbla Properties v Council of the City of Sydney (2017) 222 LGERA 385; [2017] NSWLEC 75 Latoudis v Casey (1990) 170 CLR 534 Newcastle City Council v Caverstock Group Pty Ltd (2008) 163 LGERA 83; [2008] NSWCA 249 Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Ross v Lane Cove Council [2013] NSWLEC 109 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Xia v Hornsby Shire Council [2020] NSWLEC 73 Texts Cited: Court's COVID-19 Pandemic Arrangements Policy Category: Costs Parties: Fulton Hogan Pty Ltd (Class 1 Applicant and Respondent to the costs application) Blacktown City Council (Class 1 Respondent and Applicant on the costs application) Representation: Counsel: Mr M Wright SC (Class 1 Applicant and Respondent to the costs application) Mr J Lazarus SC (Class 1 Respondent and Applicant on the costs application)