ARISTOCRAT LIMOUSINE SERVICE PTY LIMITED v SUTHERLAND SHIRE COUNCIL [1995] NSWCA 20

ARISTOCRAT LIMOUSINE SERVICE PTY LIMITED v SUTHERLAND SHIRE COUNCIL

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Kirsy P, CLARKE JA and SHELLER JA 22 May 1995

[1995] NSWCA 20

COSTS -Land and Environment Court — dismissal of proceedings — order that successful respondent pay applicant Council's costs — apparent juxtaposition of orders — summons for leave to appeal to the Court of Appeal against costs — order — primary judge (Talbot J) considers that, by reason of negotiations, no need for relief is established but that respondent's actions occasion proceedings brought by the Council — held: Order within discretion. Leave refused.

ENVIRONMENTAL PLANNING AND ASSESSMENT — Land and Environment Court — practice — costs — discretionary order — proceedings brought by local government authority dismissed — successful respondent ordered to pay authority's costs — application for leave to appeal — held: Leave refused — order within discretion — order dependent upon judge's determination of merits.

Kirby P. In the Land and Environment Court, Talbot J dismissed an application brought by the Sutherland Shire Council. Yet he ordered the Aristocrat Limousine Service Pty Limited, trading as Miranda Wedding and Function Centre, to pay the substantial costs of the proceedings.

On the face of things there appeared an odd juxtaposition of orders. Aristocrat has sought leave of this Court to appeal. It only seeks to challenge the cost orders.

When the proceedings are examined it appears that the orders are justifiable, or at least arguably justifiable, by reason of the course which the litigation took in the court below.

Although certain findings were made which were favourable to the claimants, the fact remains that the proceedings were originally occasioned, in the opinion of the Land and Environment Court by the actions of Aristocrat. Because of negotiations with the parties about the conduct of the case, it took no less than two days before the Land and Environment Court to hear the dispute over costs. Talbot J then made orders which, in his view, were appropriate to the circumstances of the case.