> Land and Environment Court of New South Wales CITATION : Azimi Development Pty Limited v North Sydney Council [2003] NSWLEC 392 APPLICANT Azimi Development Pty Limited PARTIES : RESPONDENT North Sydney Council FILE NUMBER(S) : 10650 of 2003 CORAM: Cowdroy J KEY ISSUES: Costs :- applicant seeking leave to rely upon amended plans - respondent incurring costs to be thrown away if leave granted - leave given subject to payment of costs thrown away LEGISLATION CITED: Land and Environment Court Rules 1996, Pt 13 r 16(b1) Maurici v Chief Commissioner for State Revenue; Chief Commissioner of State Revenue v Maurici (2001) 51 NSWLR 673; CASES CITED: Maurici v Chief Commissioner of State Revenue and Another (No 5) (2001) 119 LGERA 395; Oshlack v Richmond River Council (1998) 193 CLR 72; Tong Joo Pty Limited v Mosman Council [2001] NSWLEC 87 DATES OF HEARING: 1/10/2003 EX TEMPORE JUDGMENT DATE : 10/01/2003 APPLICANT Mr J. Bingham (Solicitor) SOLICITORS Deacons LEGAL REPRESENTATIVES: RESPONDENT Mr D. Parry (Barrister) SOLICITORS Mallesons Stephen Jaques JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10650 of 2003 Cowdroy J 1 October 2003 AZIMI DEVELOPMENT PTY LIMITED Applicant v NORTH SYDNEY COUNCIL Respondent Judgment Facts 1 By notice of motion filed on 19 September 2003 the applicant seeks leave of the Court pursuant to Pt 13 r 16(b1) of the Land and Environment Court Rules 1996 ("the Court rules") to enable it to rely upon amended drawings at the hearing of this appeal which is fixed for 14 October 2003 to 16 October 2003. The motion is supported by an affidavit of Nathan Paul Laird sworn 19 September 2003. 2 The respondent does not oppose the application provided it is compensated for the costs thrown away as a consequence of the applicant's reliance upon the amended plans. 3 The appeal relates to a development at 296-304 Pacific Highway, Crows Nest. The plans describe the development as a mixed use contained in a building of approximately three storeys. On 27 August 2003 the parties formulated a timetable in accordance with the expert witness practice direction. As a consequence of that agreement statements of evidence of the experts and others are due to be exchanged today. 4 The evidence of the respondent is contained in an affidavit of Jacqui Svenson sworn 25 September 2003. It establishes that the respondent had made its preparations in accordance with its obligations and had retained experts to advise it. The experts had duly considered the development proposal and had prepared reports which were completed during September 2003. 5 On 17 September 2003 the applicant submitted to the respondent the plans on which it proposes to rely at the hearing if leave is granted. The applicant submits that the plans seek to address several issues raised in the statement of issues. Further the applicant submits that it is more expeditious for the plans to be relied upon at this stage rather than waiting for the hearing to commence. The respondent, however, says that whilst the amended plans address some of the issues raised by it, additional issues are raised by the proposed plans. 6 At this stage the Court does not know the extent to which new issues are raised beyond those contained in the statement of issues. Nor does it know of the extent to which such plans could be the subject of agreement or consensus during the hearing before a Commissioner of the Court. 7 The Court's Practice Direction 10 provides that no order for costs is usually made in planning and building appeals unless the circumstances are exceptional. In Maurici v Chief Commissioner for State Revenue; Chief Commissioner of State Revenue v Maurici (2001) 51 NSWLR 673 the New South Wales Court of Appeal considered the application of such Direction. At p 686 Handley JA criticised the direction insofar as it purported to impose a fetter on the discretion of a judge when dealing with a costs application. Subsequently in Maurici v Chief Commissioner of State Revenue and Another (No 5) (2001) 119 LGERA 395 at Lloyd J on referral from the Court of Appeal of that matter observed that whilst the observation had been made by Handley JA that the discretion of the Court could not be fettered, it had been the practice in such proceedings that costs should generally not be awarded in administrative appeals. 8 In Tong Joo Pty Limited v Mosman Council [2001] NSWLEC 87 Bignold J considered an application similar to the present circumstances. His Honour observed at par 16 that a highly relevant consideration to the exercise of the Court's discretion is the case preparation by a council. He said in par 16:- Although the Court has a long-established practice of not making costs orders in planning appeals, save for exceptional circumstances, the practice is premised upon the costs being reasonably incurred in the litigation. The rule which was under consideration by his Honour was the identical rule which now brings this matter before the Court, namely, Pt 13 r 16(b1) of the Court rules. 9 Costs are compensatory and not punitive. In Oshlack v Richmond River Council (1998) 193 CLR 72 at p 75 Brennan CJ said:- Costs are awarded to indemnify a successful party in litigation, not by way of punishment of an unsuccessful party. In Latoudis v Casey (9) Mason CJ said that "in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant". At p 97 McHugh J said: "Costs are not awarded to punish an unsuccessful party." He had also observed that the principle guiding an award of costs is grounded in reasons of fairness and policy. 10 The plans upon which the applicant seeks to rely were not foreshadowed earlier. The applicant has prepared amended plans after the respondent had prepared its case and had incurred expense some of which will now be wasted. Accordingly the Court considers that it is not reasonable for the respondent to bear the costs which are thrown away as a consequence of the reliance upon amended plans. 11 The Court will therefore make an order of the type imposed in Tong Joo in which the Court ordered that the applicant pay any costs reasonably incurred by the council in the proceedings that were thrown away by virtue of the vacation of the hearing date and that the applicant pay the costs of the council reasonably incurred by virtue of its need to consider the amended plans. Orders 12 Accordingly, the Court makes the following orders:- 1. Order 1 as set out in the notice of motion dated 19 September 2003; 2. The applicant to pay the respondent's costs reasonably incurred by the respondent arising from the need to consider the amended plans referred to in par 1 of the notice of motion dated 19 September 2003; 3. The respondent file and serve an amended statement of issues seven days from today; 4. Leave be granted for Mr Davies to give oral evidence in chief in relation to the amended plans; 5. Leave be granted to file and serve statement of evidence seven days prior to the hearing with any joint conference to occur immediately after the filing and service of the evidence; 6. The costs of this application be paid by the applicant. 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.