Expandamesh Pty Ltd v Sydney Metro (No 2) [2022] NSWLEC 109

Land and Environment Court New South Wales

Medium Neutral Citation: Expandamesh Pty Ltd v Sydney Metro (No 2) [2022] NSWLEC 109 Hearing dates: 24 August 2022 Date of orders: 31 August 2022 Decision date: 31 August 2022 Jurisdiction: Class 3 Before: Moore J Decision: See orders at [69] and [70] Catchwords: COSTS - application to vary costs orders made in decision on challenges to two subpoenas and a Notice to Produce - scope of subpoenas not appropriate - limited period to be covered by subpoenas established by the evidence - limitation period imposed on the subpoenas - subpoena modified to delete irrelevant matter and subpoenas limited in time - limited period to be covered by Notice to Produce established by the evidence - limitation period imposed on Notice to Produce - Notice to Produce modified to delete irrelevant matter and limited in time - conclusion on costs that partial success of opposing parties warranted no order for costs being made - party issuing subpoenas and Notice to Produce now seeks order that it have its costs of the challenge proceedings - presumption that costs follow the event - in the application to set aside the subpoena to Infrastructure NSW, an offer of compromise had been made to narrow the scope of what was required to be produced - no response to the offer from Infrastructure NSW - appropriate to vary the costs order concerning this subpoena - Company to have its costs of the application to set aside the Infrastructure NSW subpoena - Company entitled to one third of its costs of the challenge to this subpoena - no basis demonstrated as to why the result concerning the subpoena to the Department and the Notice to Produce to Sydney Metro should be disturbed - costs motion seeking variation to outcomes of Sydney Metro's challenges dismissed COSTS - costs of costs Notice of Motion - costs follow the events - no basis to depart from conventional position - apportionment of costs of costs motion - costs of costs motion apportioned based on the success/failure on the costs motion - Infrastructure NSW to pay portion of Company's costs motion - Company to pay costs of Sydney Metro of costs motion Legislation Cited: Civil Procedure Act 2005, s 98(1) Uniform Civil Procedure Rules 2005, r 36.16 and Sch 1 Cases Cited: Aslan v Stepanoski (No 2) [2022] NSWCA 89 Expandamesh Pty Ltd v Sydney Metro [2022] NSWLEC 43 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Category: Costs Parties: Expandamesh Pty Ltd (Applicant) Sydney Metro (Respondent) Representation: Counsel: Mr T Hale SC (Applicant) Mr L Waterson, barrister (Respondent)