Molnar v Waverley Council [2005] NSWLEC 308

Land and Environment Court of New South Wales

CITATION : Molnar v Waverley Council [2005] NSWLEC 308

Robert Balazs Molnar (Appl) PARTIES : Waverley Council (Res)

FILE NUMBER(S) : 11481 of 2004

CORAM: McClellan CJ

Costs :- Fair and reasonable costs KEY ISSUES: Application for concurrence by Chief Judge of a Commissioner's costs determination

DATE OF JUDGMENT: 06/09/2005

LEGAL REPRESENTATIVES:

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

McCLELLAN J

THURSDAY 9 JUNE 2005

11481/04 MOLNAR v WAVERLEY COUNCIL

JUDGMENT 1 McCLELLAN J: In this matter Commissioner Murrell heard and determined the appeal. The appeal was upheld in part and an amended plan has been approved. 2 Commissioner Murrell heard submissions from the applicant seeking that a special costs order be made. The Commissioner determined that she, subject to my concurrence, would order the council to pay two-thirds of the costs of the court appointed expert. Unless a special order is made the rules provide that the parties are to share equally the costs of that expert. 3 The basis upon which the Commissioner reached her decision was that it would be fair and reasonable to make a special order in circumstances where council had initially decided there should be no expert evidence but subsequently changed its position and asked for a court appointed expert. 4 To my mind, these circumstances do not justify a special order. There will be many cases where a party may depend on an initial position in relation to expert evidence and in light of further instructions, change that position and consent to the appointment of a court expert. Where, as here, controversy exists in relation to the proper form of development, the assistance to be obtained by having a court expert must be encouraged. Accordingly, an order which alters the usual basis for costs can only be justified in circumstances where the contribution obtained by the appointment of a court expert was effectively of no utility. I do not understand that to be the present case. Accordingly, I do not concur in the making of a special order for costs. 5 The order of the court will be each party to pay its own costs. **********