Land and Environment Court of New South Wales CITATION : Steinert v Pittwater Council & Anor [2002] NSWLEC 149 APPLICANT Richie Steinert and Jane Steinert PARTIES : FIRST RESPONDENT Pittwater Council SECOND RESPONDENT Forte Designer Homes Pty Limited FILE NUMBER(S) : 40057 of 2001 CORAM: Cowdroy J KEY ISSUES: Costs :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 16/7/2002 EX TEMPORE JUDGMENT DATE : 07/16/2002 APPLICANT Mr P O'Brien (Solicitor) SOLICITORS Harris & Company FIRST RESPONDENT Ms H Irish (Barrister) LEGAL REPRESENTATIVES: SOLICITORS Mallesons Stephen Jaques SECOND RESPONDENT No appearance SOLICITORS Saunton Beattie JUDGMENT: IN THE LAND AND MATTER No. 40057 of 2001 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 16/7/2002 Richie Steinert and Jane Steinert Applicant v Pittwater Council First Respondent Forte Designer Homes Pty Limited Second Respondent JUDGMENT 1. Before the Court is a notice of motion seeking an order that the applicant pay the costs of the first respondent ("the council") of these proceedings. The notice of motion is supported by two affidavits each sworn by Esther Simone Duenow, one of 18 March 2002 and the other of 15 July 2002. 2. This matter has taken a course which is unusual and perplexing. It began on 17 April 2001 when the applicant commenced the proceedings. The chronology of the matter shows that the proceedings were conducted with great efficiency thereafter. 3. The application was served on the council on 20 April 2001. On 22 May 2001, points of claim were filed in Court. On 23 May 2001, the council's solicitors sought particulars of the claim. On 25 May 2001, the council filed a notice of motion seeking clarification of the nature of the claim made against it. 4. On 31 May 2001 the notice of motion was fixed for hearing to take place on 20 June 2001. On that date, the proceedings were stood over by consent to the Registrar on 8 August 2001. That step was taken to enable negotiations to take place between the applicant and the second respondent. As a result of those negotiations, the applicant made an application to the council pursuant to s 96 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") to modify the subject consent. The application was lodged on 26 July 2001 and it was granted on 17 December 2001. 5. The council has not been a party to the settlement negotiations which are confidential to the applicant and the second respondent. Accordingly for more than a year the council has not been required to take any steps in the litigation and during this period the applicant has not sought to agitate any claim against the council. 6. Correspondence has recently demonstrated that there is a settlement between the applicant and the second respondent. If effected, the applicant proposes to discontinue the proceedings against the council. 7. In an endeavour to finalise these proceedings council's application for costs was filed on 12 March 2002. Mr O'Brien who appears for the respondent in the motion, has pointed out that there has been no discontinuance at this stage and the proceedings of his client remain current against both respondents. Accordingly he submits that there is no basis upon which the application for costs can be made. 8. Unfortunately, neither the council nor the Court can be informed when the proceedings between the applicant and the second respondent will be concluded, as the settlement arrangements between the applicant and second respondent are confidential. When they are concluded a notice of discontinuance could be filed by the applicant. However, the council is left in the position of being a respondent to an application, but not knowing whether any claim against it will proceed. 9. I consider Mr O'Brien's submission that the notice of motion is premature is valid. However, that is not the end of the matter. No claim has been pursued against the council for more than twelve months. It is appropriate the applicant either proceed with its claim against the council, otherwise the first respondent would be entitled to file a notice of motion seeking dismissal. The council could also re-list the notice of motion which it filed on 20 June 2001 and amend it to seek an order for dismissal of the proceedings against it. Such proceedings would appear to be unfortunate if the matter has been or is about to be finally resolved, because additional costs will be generated which might be avoided. 10. The indication in the applicant's letter to the council dated 28 February 2002 that the proceedings would be discontinued no doubt gave council reason to initiate its claim for costs. 11. I do not regard it appropriate to conclude this motion today. Instead the Court will adjourn it. In that way, the parties will not have wasted today's hearing. Instead it will be reserved to a later date for hearing, or alternatively the Court will be able to deliver a reserved judgment. Until the applicant indicates its position or until the point is reached where a notice of discontinuance is filed or the proceedings are dismissed as against the council, the motion for costs cannot be concluded. 12. The Court therefore orders:- 1. The notice of motion dated 12 March 2002 be adjourned part heard. 2. Direct that the applicant indicate to the council within the next twenty-one days whether it intends to proceed with any claim against the council. In the event that no such indication is given, the council may be at liberty to take any proceedings it considers necessary to achieve finality in the proceedings. 3. Direct that the parties be at liberty to approach the Registrar to obtain a continuation of the hearing of this motion at any time after one month from this date, that is, at any time after 16 August 2002. 4. Reserve any question of costs. 5. In the event that the parties do not wish to place any further material before the Court in relation to costs then that is to be indicated. The Court will then treat the conclusion of this hearing today as the reservation of its decision on the application for costs. 6. Vacate the callover before the Registrar fixed for 18 July 2002 and in lieu fix a fresh callover date before the Registrar on Thursday 8 August 2002. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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