Council of the City of Sydney v Palladium Management Pty Limited & Ors [No.2] [2007] NSWLEC 129

Land and Environment Court of New South Wales

CITATION : Council of the City of Sydney v Palladium Management Pty Limited & Ors [No.2] [2007] NSWLEC 129

APPLICANT Council of the City of Sydney PARTIES : RESPONDENT Palladium Management Pty Ltd & Ors

FILE NUMBER(S) : 40764 of 2006

CORAM: Preston CJ

KEY ISSUES: Costs :- civil enforcement proceedings - discontinuance by applicant - supervening event of respondent obtaining development consent - both applicant and respondent acted reasonably - neither party almost certain to have succeeded - no order as to costs.

City of Sydney Council v Palladium Management Pty Limited [2006] NSWLEC 787; CASES CITED: Kiama Council v Grant (2006) 143 LGERA 441; Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

DATES OF HEARING: 8 March 2007

EX TEMPORE JUDGMENT DATE : 8 March 2007

APPLICANT S Kondilios (Solicitor) LEGAL REPRESENTATIVES: Maddocks Lawyers RESPONDENT P Rigg (Solicitor) Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

8 MARCH 2007

40764 OF 2006

COUNCIL OF THE CITY OF SYDNEY V PALLADIUM MANAGEMENT PTY LIMITED & ORS [No. 2]

JUDGMENT

1 HIS HONOUR: These proceedings were brought by the City of Sydney Council against a number of persons in relation to the use of parts of a residential flat building in Pyrmont for a real estate agency and building management office. The council originally brought proceedings against four respondents. 2 In an earlier judgment I dealt with the issue of costs consequent on discontinuance by the council against the second, third and fourth respondents: see City of Sydney Council v Palladium Management Pty Limited [2006] NSWLEC 787. That judgment sets out the circumstances that led to the council taking action and ultimately to discontinuing the proceedings against the second to fourth respondents. 3 The first respondent, as is disclosed in that earlier judgment, is the current owner of the real estate agency business that has an office in the residential flat building. 4 The first respondent determined, after the proceedings had been commenced against it by the council, to lodge a development application with the council for the use of the real estate agency in the building. Although the council officers recommended against the grant of consent, the council as the collegiate body resolved to grant consent. The council's resolution was on 11 December 2006 and a notice of determination would have been issued some time shortly thereafter. After the council resolved to grant consent, it instructed its solicitors to discontinue these proceedings against the first respondent. The council filed a notice of discontinuance save as to costs on 15 December 2006. 5 On 4 January 2007, the council filed a notice of motion seeking its costs of the proceedings against the first respondent. The first respondent replied with its own notice of motion seeking costs filed on 23 January 2007. 6 The two notices of motion for costs are before me for determination today. The council accepts that the usual principle governing questions of costs where there has been a discontinuance are those which were summarised by me in Kiama Council v Grant (2006) 143 LGERA 441 at para 80. Of relevance to the facts of this case is subpara (b) where I said the following: "Where some supervening event or settlement so removes or modifies the subject of the dispute that no issue remains except that of costs, the proper exercise of the costs discretion will ordinarily be to make no order as to costs unless: