ULV PTY LTD v SCOTT [NO 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS, PRIESTLEY and JJA 23 November 1989, 1 March 1990, 11 July 1991 [1991] NSWCA 270 COSTS — Land and Environment Court — class 4 application general rule that party entitled to costs — appeal to Court of Appeal from orders — appeal allowed — provision for costs of proceedings at first instance — orders made by Court of Appeal but not entered — incorrect assumption that no order made for such costs at trial — held: The Court of Appeal's order should be varied to follow ordinary rule in respect of costs of trial. Campbell v Minister for Environment and Planning, Land and Environment Court, unreported, 24 June 1988 (Cripps J) referred to. PRACTICE - Court of Appeal - orders - error - incorrect assumption - orders not entered - incorrect assumption as to disposal of costs at first instance - held: As orders not entered and as an incorrect assumption was demonstrated the Court could and should vary its earlier orders. Kirby P I agree with Priestley JA. Samuels JA I agree with Priestley JA. Priestley JA On 30 March last year, the court published reasons for allowing this appeal. My opinion was that the following orders should be made: "1. Appeal allowed; 2. Declaration and order made by Bignold J, set aside; 3. In lieu thereof, order that the application by the First Respondents to the Land and Environment Court be dismissed; 4. The First Respondents to pay the costs of the Appellant and Second Respondent of the appeal; the Appellant's costs to be limited to those reasonably incurred to the date of the Appellant's decision not to brief counsel; liberty to apply to a single judge of appeal in chambers; 5. The First Respondents to have an indemnity certificate under the Suitors' Fund Act 1951; 6. The proceedings returned to the Land and Environment Court for such order as to the costs of the hearing at first instance as that Court may determine." Kirby P and Samuels JA agreed with me. Before the orders were entered the court's attention was drawn to the fact that my reasons had wrongly assumed that the trial judge had made no order for the costs of the proceedings at first instance. In fact, although the substantive orders in the case making a declaration and granting an injunction had been made on 23 December 1987, I had overlooked that costs orders were later made on 15 February 1988. The declaration and orders at first instance were: "THE COURT DECLARES THAT: 1. The development consent purportedly granted by the Ist Respondent on 22 June, 1987 to Development Application No 142/87 is null and void. THE COURT ORDERS THAT: 2 UNREPORTED JUDGMENTS 2. The 2nd Respondent be restrained from carrying out development on property No 52 Halstead Street, Hurstville Grove otherwise than in accordance with a valid development consent under the Environmental Planning and Assessment Act 1979, (including the development consent granted by the Ist Respondent on 24 March, 1986 to Development Application No 323/85). 3. Exhibits may be returned. 4. The Applicant" [the First Respondents in the appeal] 'pay costs of Second Respondent in respect of Interlocutory proceedings. 5. The Respondents pay the Applicant's costs on hearing of substantive suit. 6. No order be made in favour of First Respondent on Interlocutory Proceedings." When it was pointed out to this court that it was necessary to decide the question of the first instance costs, written submissions were invited from the parties and duly supplied. The First Respondents accepted that the general rule in class 4 litigation is that a successful party is entitled to an order for costs and only special circumstances will justify departure from that rule: Campbell v Minister for Environment and Planning (Cripps J, unreported, 24 June 1988). It was submitted however that there were in this case such special circumstances. The matters relied on as warranting departure from the ordinary rule are set out in para4-11 of the First Respondents' written submissions. They show that the First Respondents had some justification for dissatisfaction with some aspects of the Council's procedures. However, those matters were either not relevant to the commencement of a class 4 application, or, to the extent that they were, were not matters sufficient, on the view I take of the appropriate result in that application, to justify the making of orders in the applicants' favour. Such matters do not seem to me to warrant departure from the making of usual costs orders in regard to the case as fought at first instance. As both the Council and ULV were necessary parties to the proceedings, I think the order for the costs of the trial must be that the applicants below pay the costs of the Council and ULV. O.4 and O.6 as made by Bignold J should not be disturbed and no order need be made about them. I therefore propose that O.2 of the orders suggested in my reasons of 1 March 1990 be varied, and a new O.6 substituted, so that the orders, in my opinion, should be: 1. Appeal allowed; 2. Declaration and O.2, O.3 and O.5 made by Bignold J be set aside; 3. In lieu thereof, order that the application by the First Respondents to the Land and Environment Court be dismissed; 4. The First Respondents to pay the costs of the Appellant and Second Respondent of the appeal; the Appellant's costs to be limited to those reasonably incurred to the date of the Appellant's decision not to brief counsel; liberty to apply to a single judge of appeal in chambers; 5. The First Respondents to have an indemnity certificate under the Suitors' Fund Act 1951; 6. The Applicants below pay the costs of the Respondents below of the substantive hearing. Counsel for the Appellant: SJ Lancken (Solicitor) Counsel for the 1st Respondent: FP Donohoe URJ ULV PTY LTD v SCOTT [NO 2] (Priestley JA) Counsel for the 2nd Respondent: GK Downes QC / GA Flick Solicitors for the Appellant: Owen Hodge and Son Solicitors for the 1st Respondent: Hill Ryner and Co Solicitors for the 2nd Respondent: McDonnell Moffitt Dowling Taylor