COUNCIL OF THE CITY OF SYDNEY v GARBETT PTY LTD and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and HANDLEY JJA 24 August 1995, 1 February 1996 [1996] NSWCA 126 COSTS — Land and Environment Court dispute between ratepayer and local government authority concerning liability for rates — proper approach to costs — held: Costs should follow the event. COSTS — Land and Environment Court — dispute between ratepayer and local government authority concerning liability for rates — whether costs should follow the event — whether no order for costs should be made — relevant practice of Land and Environment Court — held: No reason is shown as to why costs should not follow the event — costs so ordered — other orders made following reference of proceedings back to Court of Appeal. See Sydney City Council v Garbett Pty Ltd (1995) 69 ALJR 616 (HC). ORDERS As contained in the reasons of the Court. Liberty to apply for purposes only of formal clarification or correction. Kirby P, Priestley and Handley JJA Following the decision of the High Court (Sydney City Council v Garbett Pty Ltd (1995) 69 ALJR 616), these matters again came before this court, where the parties were able to reach a considerable degree of agreement on the appropriate orders. The only matter of substance eventually not agreed was whether this court should make orders for costs of the proceedings in the Land and Environment Court, and if so, what orders. The saving of time and expense led this court to think it should make the orders. The contest then remaining was whether the costs in question should follow what, as the successive appeals eventually showed, should have been the event in the Land and Environment Court, or whether no order for costs of those proceedings should be made. The latter orders were said to be in accord with the practice of the Land and Environment Court. However, so far as we are aware, the only practice of this kind which is in any formal sense established is confined to planning and building appeals: cf Maclean Shire Council v Nungera Co-operative Society Ltd (1994) 84 LGERA 139 (CA). In cases such as the present involving complex questions of law, commercial occupiers, and substantial amounts, heard by a Judge of the Land and Environment Court, we see no reason why the ordinary rule as to costs should not apply. This is well established in other taxation litigation in federal and state courts. We were informed however that many rating appeals in the Court, involving for example domestic occupiers and modest amounts, are heard by assessors of the Court, and that in cases of this kind the practice has been to make no order as to costs. The present cases are manifestly not of this kind. 2 UNREPORTED JUDGMENTS Our decision is not intended to affect any practice of the Court in rating appeals heard by assessors as administrative appeals on the models of the former Taxation Boards of Review and Federal and State Administrative Appeals Tribunals. No such practice is before us in these appeals. We are therefore prepared to make orders in the form submitted in draft on behalf of the Council which have been prepared on the footing of what we think is the appropriate approach to costs orders in the Land and Environment Court in cases of this kind. In the four notices of appeal to this court, the First Respondent was Garbett Pty Ltd, Citistate Corporation Ltd and the Second Respondent Chalford Holdings Pty Ltd and Citistate Corporation Ltd. In the hope of lessening confusion we have altered counsel's draft by not using the formal description of the parties, but their names. The potential for confusion in the names arose in part from two proceedings having been commenced concerning each rate notice, in part because of difficulties about parties, and in part because of duplications among some of the rate notices. Because of these matters and because of the different ways in which some of the rate notices have been treated, it is difficult to be sure that every matter necessary to be dealt with in the court's orders has been dealt with. Counsel for the parties have tried to cover everything in their drafts, and, so far as the court can see, successfully. However, in case after the making of the orders it is realised that some further matter needs attention or correction, we have added an order giving liberty to apply to any party, within fourteen days of the making of these orders, for purposes only of their formal clarification or correction. The orders we make are as follows: A(a) APPEAL FROM LAND and ENVIRONMENT COURT PROCEEDINGS NO 30612/91, APPLICATION CLASS 3: 1. Appeal allowed. 2. Judgment of Bannon J set aside. 3. The appeal or objection dated 4 October 1991 against the appellant's decision to issue Rate Notice Assessment Number 11238-00000-5-000, dated 10 September 1991, due date 11 October 1991 is dismissed, except to the extent provided in para4. 4. Declare that Citistate Corporation is not liable to the appellant for any amount under the said Rate Notice. 5. Cross-appeal dismissed. 6. Garbett Pty Ltd is to pay the appellant's costs of the appeal. 7. The appellant is to pay Citistate Corporation Ltd's costs of the appeal. 8(a). Garbett Pty Ltd is to pay the Council's costs of the proceedings in the Land and Environment Court; (b) the appellant Council is to pay Citistate Corporation Ltd's costs of the proceedings in the Land and Environment Court. 9. Liberty to apply, for purposes only of formal clarification or correction. (b) APPEAL FROM LAND and ENVIRONMENT COURT PROCEEDINGS NO 40101/92, APPLICATION CLASS 4: 1. Appeal allowed. 2. Judgment of Bannon J set aside. The application dated 22 May 1992 for a declaration that Rate Notice Assessment Number 11238-00000-5-000 due date 11 October 1991 was not validly or properly issued is dismissed, except to the extent provided in para4. UWRQUNCIL OF THE CITY OF SYDNEY v GARBETT PTY LTD and ANOR (Kirby P, Priestle and Handley JJA) 4. Declare that Citistate Corporation is not liable to the appellant for any amount under the said Rate Notice. 5. Cross-appeal dismissed. 6. Garbett Pty Ltd is to pay the appellant's costs of the appeal. 7. The appellant is to pay Citistate Corporation Ltd's costs of the appeal. 8(a) Garbett Pty Ltd is to pay the Council's costs of the proceedings in the Land and Environment Court; (b) the appellant Council is to pay Citistate Corporation Ltd's costs of the proceedings in the Land and Environment Court. 9. Liberty to apply, for purposes only of formal clarification or correction. B(a) APPEAL FROM LAND and ENVIRONMENT COURT PROCEEDINGS NO 30613/91, APPLICATION CLASS 3: 1. Appeal allowed. 2. Judgment of Bannon J set aside. 3. The appeal or objection dated 4 October 1991 against the appellant's decision to issue Rate Notice Assessment Number 11237-00000-2-000, due 11 October 1991 is dismissed, except to the extent provided in para4. 4. Declare that Citistate Corporation is not liable to the appellant for any amount under the said Rate Notice. 5. Cross-appeal dismissed. 6. Chalford Holdings Pty Ltd is to pay the appellant's costs of the appeal. 7. The appellant is to pay Citistate Corporation Ltd's costs of the appeal. 8(a) Chalford Holdings Pty Ltd is to pay the Council's costs of the proceedings in the Land and Environment Court; (b) the appellant Council is to pay Citistate Corporation Ltd's costs of the proceedings in the Land and Environment Court. 9. Liberty to apply, for purposes only of formal clarification or correction. (b) APPEAL FROM LAND and ENVIRONMENT COURT PROCEEDINGS NO 40102/92, APPLICATION CLASS 4: 1. Appeal allowed. 2. Judgment of Bannon J set aside. 3. The appeal or objection dated 22 May 1992 for a declaration that Rate Notice Assessment Number 11238-00000-5-000, due 11 October 1991 is dismissed, except to the extent provided in para4. 4. Declare that Citistate Corporation is not liable to the appellant for any amount under the said Rate Notice. 5. Cross-appeal dismissed. 6. Chalford Holdings Pty Ltd is to pay the appellant's costs of the appeal. 7. The appellant is to pay Citistate Corporation Ltd's costs of the appeal. 8(a) Chalford Holdings Pty Ltd is to pay the Council's costs of the proceedings in the Land and Environment Court; (b) the appellant Council is to pay Citistate Corporation Ltd's costs of the proceedings in the Land and Environment Court. 9. Liberty to apply, for purposes only of formal clarification or correction. C(a) APPEAL FROM LAND and ENVIRONMENT COURT PROCEEDINGS NO 30082/92, APPLICATION CLASS 3: 1. Appeal allowed. 2. Judgment of Bannon J set aside. 3. The appeal or objection dated 5 February 1992 against the appellant's decision to issue Rate Notice Assessment Number 11238-00000-5-000, due 3 February 1992 is dismissed, except to the extent provided in para4. 4 UNREPORTED JUDGMENTS 4. Declare that Citistate Corporation is not liable to the appellant for any amount under the said Rate Notice. 5. Cross-appeal dismissed. 6. Garbett Pty Ltd is to pay the appellant's costs of the appeal. 7. The appellant is to pay Citistate Corporation Ltd's costs of the appeal. 8(a) Garbett Pty Ltd is to pay the Council's costs of the proceedings in the Land and Environment Court; (b) the appellant Council is to pay Citistate Corporation Ltd's costs of the proceedings in the Land and Environment Court. 9. Liberty to apply, for purposes only of formal clarification or correction. (b) APPEAL FROM LAND and ENVIRONMENT COURT PROCEEDINGS NO 40103/92, APPLICATION CLASS 4: 1. Appeal allowed. 2. Judgment of Bannon J set aside. 3. The appeal or objection dated 22 May 1992 against the appellant's decision to issue Rate Notice Assessment Number 11238-00000-5-000, due 3 February 1992 was not validly or properly issued is dismissed, except to the extent provided in para4. 4. Declare that Citistate Corporation is not liable to the appellant for any amount under the said Rate Notice. 5. Cross-appeal dismissed. 6. Garbett Pty Ltd is to pay the appellant's costs of the appeal. 7. The appellant is to pay Citistate Corporation Ltd's costs of the appeal. 8(a) Garbett Pty Ltd is to pay the Council's costs of the proceedings in the Land and Environment Court; (b) the appellant Council is to pay Citistate Corporation Ltd's costs of the proceedings in the Land and Environment Court. 9. Liberty to apply, for purposes only of formal clarification or correction. D(a) APPEAL FROM LAND and ENVIRONMENT COURT PROCEEDINGS NO 30083/92, APPLICATION CLASS 3: 1. Appeal allowed in part. 2. Judgment of Bannon J set aside. 3. The appeal or objection dated 5 February 1992 against the appellant's decision to issue Rate Notice Assessment Number 11237-00000-2-000 due date 3 February 1992, is upheld in part and dismissed in part, to the extent stated in para4 and para5 following. 4. Declare that Citistate Corporation Ltd is not liable to the appellant Council for any amount under the said Rate Notice. 5. Declare that as against Chalford Holdings Pty Ltd the said Rate Notice is valid in the amount of $681,817 set out in the Rate Notice and is not valid in the amount of $66,043 set out in the said Rate Notice. 6. Cross-appeal dismissed. 7. The appellant Council is to pay Chalford Holdings Pty Ltd's costs of the proceedings in this court. 8. The appellant Council is to pay Chalford Holdings Pty Ltd's costs of the proceedings in the Land and Environment Court. 9. The appellant Council is to pay Citistate Corporation Ltd's costs of the appeal. 10. The appellant Council is to pay Citistate Corporation Ltd's costs of the proceedings in the Land and Environment Court. 11. Liberty to apply, for purposes only of formal clarification or correction. UWRQUNCIL OF THE CITY OF SYDNEY v GARBETT PTY LTD and ANOR (Kirby P, Priestley and Handley JJA) (b) APPEAL FROM LAND and ENVIRONMENT COURT PROCEEDINGS NO 40104/92, APPLICATION CLASS 4: 1. Appeal allowed in part. 2. Judgment of Bannon J set aside. 3. The application dated 5 February 1992 for a declaration that Rate Notice Assessment Number 11237-00000-2-000 due date 3 February 1992, was not validly or properly issued is dismissed; the extent of its validity being stated in para4 and para5 following. 4. Declare that the second named first respondent (Citistate Corporation Limited) is not liable to the appellant Council for any amount under the said Rate Notice. 5. Declare that as against Chalford Holdings Pty Ltd the said Rate Notice is valid in the amount of $681,817 set out in the Rate Notice and is not valid in the amount of $66,043 set out in the said Rate Notice. 6. Cross-appeal dismissed. 7. The appellant Council is to pay Chalford Holdings Pty Ltd's costs of the proceedings in this court. 8. The appellant Council is to pay Chalford Holdings Pty Ltd's costs of the proceedings in the Land and Environment Court. 9. The appellant Council is to pay Citistate Corporation Ltd's costs of the appeal. 10. The appellant Council is to pay Citistate Corporation Ltd's costs of the proceedings in the Land and Environment Court. 11. Liberty to apply, for purposes only of formal clarification or correction. As contained in the reasons of the Court. Liberty to apply for purposes only of formal clarification or correction. Counsel for the Appellant: KM Guilfoyle Solicitors for the Appellant: Blake Dawson Waldron Counsel for the Respondent: TS Hale Solicitors for the Respondent: Webeck Farland Pender