Land and Environment Court of New South Wales CITATION: Vanmeld Pty Limited V Fairfield City Council [1999] NSWLEC 47 PARTIES Applicant Vanmeld Pty Limited Respondent Fairfield City Council NUMBER: 40077 of 1997 CORAM: Sheahan J KEY ISSUES: :- In Class 4 LEGISLATION CITED: In Class 4 DATES OF HEARING: 02/19/1999 EX TEMPORE JUDGMENT DATE: 02/19/1999 Mr R Butler of Jennifer E Darin Solicitor LEGAL REPRESENTATIVES: Ms L McCusker Deacons Graham & James Solicitors JUDGMENT: IN THE LAND AND Matter No: 40077 of 1997 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 19 February 1999 VANMELD PTY LIMITED Applicant v FAIRFIELD CITY COUNCIL Respondent EXTEMPORE JUDGMENT (Revised from Transcript) HIS HONOUR: 1. In this matter the respondent moves on a notice of motion filed on 13 January to bring the question of costs squarely before the Court. The motion seeks orders that the applicant pay the respondent's costs of the proceedings in matter no 40077 and also the costs of the notice of motion and the costs of today. 2. It is trite to suggest that this has been a complex matter. On the substantive issues involved in the class 4 application there have been, in the twelve months from December 1997 to December 1998, three considered judgments delivered. In each of those judgments I reserved the question of costs in the class 4 proceedings, even though those judgments allowed some related class 1 proceedings to continue to run along with the matter. Appropriately the respondent asks for no orders for costs in respect of the class 1 proceedings and I will certainly not be making any such order at this stage. 3. The law on costs in this court is quite clear and it has been summarised by Miss McCusker in her submissions. 4. In Class 4 of the court's jurisdiction the successful litigant is normally entitled to costs in the absence of any special or exceptional circumstances demonstrated by the unsuccessful party. 5. In class 1 proceedings the issue before the court would be the reverse: there would be no order for costs unless the applying party could show some special circumstances. 6. I think it appropriate that the matter come before the court by way of a notice of motion given the history of the litigation. In any event it has been handled by the Registrar on the basis that that was the appropriate course. The applicant in the proceedings, who responds to the notice of motion, has elected to make no submissions on the substantive question of costs. 7. It has been helpful to the court to have a summary given from the bar table as to the way in which the proceedings ran, and I am satisfied, on reconsidering all of those matters, including my comments on them in the course of the three reserved judgments, that it is a fair representation of the position to say that although these proceedings were commenced pursuant to an agreement resolving other proceedings, they were brought by the applicant and strongly resisted by the respondent. 8. At the end of the day, the applicant has indeed been entirely unsuccessful in the primary claims and submissions that underpinned the proceedings. As Miss McCusker reminds me, the actual declaration made in the third and final judgment to which I refer, namely that of 15 December 1998, was virtually in identical terms to that which was submitted on the respondent council's behalf. 9. I, therefore, think that the ordinary rule for costs of the proceedings should apply, and, in the circumstances, I also make no criticism of the matter being ventilated as a result of a notice of motion. 10. Accordingly, I make orders one and two as sought in the notice of motion, namely that the applicant pay the respondent's costs of the proceedings, pointing out again that those are the proceedings in 40077 of 1997 and no other proceedings, and, secondly, that the applicant should pay the respondent's costs of this notice of motion. 11. As I apprehend it, no further orders are required and that should dispose of the proceedings at least for today. I HEREBY CERTIFY THAT THIS AND THE PRECEDING 2 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN. Associate: Dated: 19 February 1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.