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. ********** 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.