Land and Environment Court of New South Wales CITATION : Antic v City of Sydney Council [2006] NSWLEC 546 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT: Suzelle Antic PARTIES : RESPONDENT: City of Sydney Council FILE NUMBER(S) : 11485 of 2005 CORAM: Lloyd J KEY ISSUES: Costs :- in class 1 – party seeking indulgence – fair and reasonable to order costs – unreasonable delay in providing document LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97(2) Land and Environment Court Rules 1996 Pt 16 r 4 CASES CITED: Grant v Kiama Municipal Council [2006] NSWLEC 70 DATES OF HEARING: 14/07/2006 EX TEMPORE JUDGMENT DATE : 07/17/2006 APPLICANT: M V Sahade (barrister) SOLICITORS: Comino Prassas LEGAL REPRESENTATIVES: RESPONDENT: M G Craig QC SOLICITORS: Maddocks JUDGMENT: - 4 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Friday, 14 July 2006 LEC No. 11485 of 2005 ANTIC v CITY OF SYDNEY [2006] NSWLEC 546 EX TEMPORE JUDGMENT -- 1 HIS HONOUR: This is an application for costs in proceedings in Class 1 of the Court's jurisdiction sought by the respondent, the City of Sydney Council, against the applicant, Suzelle Antic. It is necessary to set out the chronology of events in order to understand how the claim for costs arises. The applicant conducts the business of a brothel at No. 3 Tusculum Street, Potts Point, pursuant to a development consent already in existence. 2 A development application was made by the applicant for alterations and additions to that existing brothel. As I understand it, the council granted development consent for the alterations and additions, subject to conditions, and an appeal was brought by the applicant under s 97(2) of the Environmental Planning and Assessment Act 1979 against certain conditions that had been imposed by the council. 3 The case was listed for hearing before two commissioners of the Court on 18 May 2006 and 19 May 2006. On the day before the hearing was due to commence, namely 17 May 2006, the council served on the applicant, by facsimile, its "Without Prejudice Conditions of Consent". On the same day, the applicant's solicitors sent a letter to the council's solicitors referring to the consent that the council had issued and setting out amended conditions that it proposed to be substituted for those that had been imposed by the council. 4 The document that the council served on 17 May 2006 included an additional condition to those which the council had imposed when granting the consent itself, namely a condition requiring the surrender of the original consent. 5 Following the hearing and prior to any orders being made, that is when judgment was reserved, the applicant served a notice of motion to re-open the hearing. The affidavit in support of the motion to re-open states that on the afternoon of 17 May 2006, being the date before the hearing, the council solicitors provided "Without Prejudice Conditions of Consent", which were subsequently filed. The applicant points to the fact that the "Without Prejudice Conditions of Consent" contained a new condition requiring the surrender of the original consent. The applicant sought leave to argue whether that condition should also be imposed. 6 The commissioners heard argument on 16 June 2006. That is, the commissioners heard the notice of motion on 16 June 2006 and presumably heard argument in relation to the condition. In their decision delivered on 23 June 2006, the commissioners, in effect, dismissed the appeal. 7 The council now seeks its costs limited to the additional appearance on 16 June 2006, as I understand it. It is acknowledged that leave to re-open was granted but it is submitted on behalf of the council that here the applicant was seeking an indulgence for which the council was not to blame and the normal practice as to costs where a party seeks an indulgence is that that party pays the costs thereby incurred. 8 The applicant submits that (i) the additional condition was not drawn to anyone's attention; (ii) it is usual for amendments to a document to be highlighted or underlined; (iii) that there was no covering letter with the faxed copy of the "Without Prejudice Conditions of Consent"; (iv) if the additional condition had been picked up at the hearing it could have been addressed then; (v) the statement of issues filed by the applicant were based upon the original conditions of consent against which the applicant was appealing; and (vi) that the "Without Prejudice Conditions" is a relatively complex document. 9 I find the competing arguments on the present notice of motion for costs to be nicely balanced. It is true that the normal practice is that a party seeking an indulgence is ordinarily ordered to pay the costs thereby incurred. In the present case, costs are governed by the Land and Environment Court Rules 1996, in particular, Pt 16 r 4, which provides that no order for the payment of costs be made in proceedings in Class 1 of the Court's jurisdiction, unless the Court considers that the making of the costs order, is, in the circumstances, of a particular case, fair and reasonable. 10 The language of the rule maintains the general presumption that there will not ordinarily be any order for costs in Class 1 planning appeals, unless in the particular case there is some circumstance which would make it fair and reasonable that there should be an order for costs. The Court approaches this exercise of discretion under the rule on the basis that parties may remain confident that they may commence or defend proceedings without the onerous threat of incurring liability for costs other than their own, even if they are unsuccessful. The following circumstances are some of those which apply where it may be fair and reasonable to make an order for costs. 11 Firstly, where the proceedings cease to have the character of a merits review. Secondly, where there may be a preliminary question of law going to jurisdiction. Thirdly, where a party may fail to provide or unreasonably delay in providing information or documents required. Fourthly, where a party may have acted unreasonably in the conduct of proceedings such as delaying unreasonably in taking action, or making proper concessions, or agreeing to proper amendments to any originating process, pleading or other document, or unnecessarily protracting the proceedings. Fifthly, where any party has acted unreasonably in circumstances leading up to the proceedings, such as effectively inviting the litigation. Sixthly, where the applicant, properly advised, ought to have known that he had no chance or very poor prospects of success. Finally, where a party conducts its case for perhaps an extraneous purpose or not on a rational basis. (See Grant v Kiama Municipal Council [2006] NSWLEC 70 at [15].) 12 Those are the common circumstances under which this Court, has been inclined to order costs. In the present case, as I've said, I find the parties' submissions nicely balanced. The fact that the council served a fourteen page document containing its proposed conditions the day before the hearing, without drawing attention to a crucial amendment to those conditions which it had imposed on the grant of the development consent, inclines me to the view that there should be no order for costs in this case. That is, the facts fall within the third set of circumstances I have described – the council unreasonably delayed in providing the document. By serving a long and detailed document on the afternoon before the hearing the council allowed insufficient time for the applicant to examine it. The Council is thus not entitled to the costs of the additional hearing on 16 June 2006, the need for which was caused by its late service of the document. I therefore dismiss the motion for costs, with costs. I hereby certify that the preceding 12 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 30 August 2006 ********** 12/09/2006 - Please note that the proceedings number has been amended. - Paragraph(s) N/A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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