Pittwater Council v Varney [2005] NSWLEC 651

Land and Environment Court of New South Wales

CITATION : Pittwater Council v Varney [2005] NSWLEC 651

APPLICANT: Pittwater Council

PARTIES : RESPONDENT: Varney

FILE NUMBER(S) : 40210 of 2001

CORAM: Bignold J

Costs :- in class 4 proceedings where consent orders made—whether proceedings were necessary—whether prosecution of the proceedings was unreasonable—whether any estoppel by representation applies. KEY ISSUES:

LEGISLATION CITED: Land and Environment Court Act 1979, s 69

Oshlack v Richmond River Council (1998) 193 CLR 72; CASES CITED: Auburn Council v F N Eckold Pty Ltd (1974) 34 LGRA 101

DATES OF HEARING: 30/05/2005

DATE OF JUDGMENT: 11/15/2005

APPLICANT: Ms G Furness, Barrister SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES:

RESPONDENT: Mr J Johnson, Barrister SOLICITORS Cowley Hearn

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BIGNOLD J

15 November 2005

40210 of 2001 PITTWATER COUNCIL v MARTIN WARWICK VARNEY

JUDGMENT A. INTRODUCTION 1 HIS HONOUR: By its Notice of Motion filed 22 April 2005, the Applicant (the Council) seeks an order that the Respondent pay all of the Council's costs in these class 4 proceedings which were commenced on 21 November 2001 and were concluded by consent orders made on 22 March 2002 and further consent orders made on 12 May 2004. Both those orders reserved the question of costs. 2 Based upon those outcomes as reflected in the consent orders the Council claims that it was the successful party in the proceedings and seeks its costs in the proceedings in accordance with established principle that costs follow the event. 3 The Respondent opposes the Council's Motion on a number of different grounds—firstly on the ground that the Council was not successful in the proceedings, secondly on the ground that the proceedings were unnecessary, thirdly on the ground that the Council in the course of negotiations between the parties during the interval between the two sets of consent orders, made a representation to the Respondent which the Respondent acted upon to his detriment upon the basis of which the Respondent asserts that the Council is estopped from seeking any costs order against the Respondent. The Respondent claims its costs on the hearing of the Council's Motion for costs. 4 Unfortunately, there is a protracted history documented in more than 100 written communications (totalling nearly 400 pages) passing between the parties' solicitors that are relevant to this litigation and which must be surveyed in order to adjudicate upon the disputed question of costs. 5 In surveying the litigation history four distinct or discrete period or phases can be identified and it is instructive to consider those separately from the viewpoint of the disputed costs question. They comprise—