Twynam Investments Pty Ltd v Goulburn Mulwaree Council (No 2) [2021] NSWLEC 50

Land and Environment Court New South Wales

Medium Neutral Citation: Twynam Investments Pty Ltd v Goulburn Mulwaree Council (No 2) [2021] NSWLEC 50 Hearing dates: On the papers - submissions on 19 and 25 March 2021 Date of orders: 24 May 2021 Decision date: 24 May 2021 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [123] Catchwords: COSTS - successful Applicant in Class 1 proceedings awarded costs on an ordinary basis as being "fair and reasonable" in light of the outcome of those proceedings - successful Applicant seeks costs order be made on the indemnity basis - consideration of settlement offers made - first offer lacked precision - second offer made on an "open offer" basis (and rejected) provides a proper foundation to award costs on the indemnity basis after the expiry of the offer - Respondent ordered to pay the Applicant's costs of the indemnity from the date of refusal of the Applicant's second offer COSTS - complaint that two‑step approach in seeking a costs order on the indemnity basis was procedurally unfair - two‑step approach necessary to establish an outcome against which rejected offers could be measured - no procedural unfairness - costs of costs applications ordinarily follow the event - costs of costs applications usually awarded on the ordinary basis - no reason to depart from these positions - Respondent ordered to pay the Applicant's costs of the indemnity costs application as agreed or assessed Legislation Cited: Civil Procedure Act 2005, s 98 Environmental Planning and Assessment Act 1979, s 1.5 Land and Environment Court Rules 2007, r 3.7 Uniform Civil Procedure Rules 2005, r 36.16(3A) Cases Cited: Calderbank v Calderbank (1975) 3 All ER 333 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Harrison v Schipp [2001] NSWCA 13 Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298 Li v Willoughby City Council [2018] NSWLEC 1262 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Oshlack v Richmond River Council (1998) 193 CLR 72 Port Stephens Council v Sansom (2007) 156 LGERA 125; [2007] NSWCA 299 Twynam Investments Pty Ltd (formerly known as Twynam Agricultural Group Pty Ltd) v Goulburn Mulwaree Council [2020] NSWLEC 1557 Twynam Investments Pty Ltd v Goulburn Mulwaree Council [2021] NSWLEC 7 Texts Cited: Law of Costs, G E Dal Pont, LexisNexis, 4th ed, 2018 Ritchie's Uniform Civil Procedure NSW Category: Costs Parties: Twynam Investments Pty Ltd (Applicant) Goulburn Mulwaree Council (Respondent) Representation: Counsel: Ms A Kliese, solicitor (Applicant) Ms N Hammond, barrister (Respondent)