Land and Environment Court of New South Wales CITATION : Conomos v Mosman Municipal Council (No. 2) [2005] NSWLEC 137 APPLICANT George Conomos PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 10854 of 2004 CORAM: Tuor C. KEY ISSUES: Costs :- Respondent sought costs for applicant's unsuccessful cost application Conomos v Mosman Municipal Council [2004] NSWLEC 586; CASES CITED: Conomos v Mosman Municipal Council [2005] NSWLEC 118; Gee v Port Stephens Council [2003] NSWLEC 260 DATES OF HEARING: 28/02/05 DATE OF JUDGMENT: 03/29/2005 APPLICANT Ms J Hold, Solicitor SOLICITORS Verekers Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms S Duggan, Barrister SOLICITORS Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 29 March 2005 10854 of 2004 (2) George Conomos v Mosman Municipal Council JUDGMENT 1 This is an application by Mosman Municipal Council (council) for the costs of the Notice of Motion heard on the 28 February 2005 where the Applicant sought costs for the class 1 appeal that was heard on 20 October 2004. I upheld a class 1 appeal for the reasons published in Conomos v Mosman Municipal Council [2004] NSWLEC 586. No order as to costs was sought or made at that time. 2 The Applicant's motion for costs failed for the reasons that I published in Conomos v Mosman Municipal Council [2005] NSWLEC 118. 3 Prior to 2 February 2004 the practice of the Court was to award costs only where there were exceptional circumstances. From this date the Land and Environment Court Rules Amendment No. 8 2003 came into effect and amended the basis for costs in class 1 cases. The relevant provisions of Pt 16 of the Rules now reads: (2) No order for the payment of costs will be made in proceedings to which this rule applies unless the court considers that the making of a costs order is in the circumstances of the particular case fair and reasonable . 4 Ms Duggan, for the council, in support of council's application for costs submitted that: Where there is a matter which is raised in the proceedings which does not relate to the merit determination of the matter, and I accept that Gee v Port Stephens was a question of law or a matter which went to the prohibition of the use, the usual order would normally apply. By analogy in this case, a motion for costs is not a matter which goes to the merit determination which is the rationale or the principle behind the making of the rule that there is no order as to costs in class 1 proceedings, therefore the objective to the exception in the rule doesn't apply in motions for costs 5 Ms Duggan stated that in the circumstances where the Applicant's motion for costs had been unsuccessful and where it had rejected an offer that each party pay its own costs, it would be appropriate that the Applicant be ordered to pay the council's costs. Ms Hold, for the Applicant, opposed this but made no submission. 6 Both parties indicated that they did not wish to make submissions to the Chief Judge should I seek his concurrence on an order for costs. 7 It is not the usual practice for costs to be awarded for class 1 appeals, however, when a separate hearing date is necessary to deal with the costs application the principles discussed by McClellan CJ in Gee v Port Stephens Council [2003] NSWLEC 260 are applicable. 8 On this basis I find that, subject to the concurrence of the Chief Judge, it is appropriate that the Applicant pay the council's costs for the motion on 28 February 2005. However, the quantum of the costs should be determined and included in any order that I make. To that end, I will direct the parties to provide written submissions; the council identifying the quantum it seeks to which the Applicant is to respond. 9 Upon receipt of the submissions I shall determine the quantum and, subject to the concurrence of the Chief Judge, make an appropriate order in chambers. 10 I direct that: 1. The Respondent is to file and serve by 12 April 2005 its submission on the quantum of its costs for the Notice of Motion heard on 28 February 2005. 2. The Applicant is to file and serve by 19 April 2005 its submission in response to the Respondent's submission. 3. The Respondent is to make any further submission in response to the Applicant's submission by 26 April 2005. _________________ Annelise Tuor Commissioner of the Court 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.