Land and Environment Court of New South Wales CITATION : Carriage v Stockland Development Pty Ltd & Ors [No 9] [2004] NSWLEC 752 APPLICANT PARTIES : Allen Carriage FIRST RESPONDENT Stockland Development Pty Ltd FILE NUMBER(S) : 40863 of 2002 CORAM: Pain J KEY ISSUES: Costs :- whether payable forthwith Land and Environment Court Act 1979 s 69 LEGISLATION CITED: Land and Environment Court Rules Pt 16 Supreme Court Rules Pt 52A r 9 ASIC v Rich [2003] NSWSC 297; Carriage v Stockland Development Pty Ltd & Ors [No 8] [2004] NSWLEC 727; CASES CITED: Fiduciary Limited v Morningstar Research Pty Limited [2002] NSWSC 432; Kyabram Property Investments Pty Limited v Murray; Murray v Duddy [2003] NSWSC 286; Linfox Transport Australia Pty Limited v Ellul & Ors [2003] NSWSC 396 ; Westfield Management Limited and Ors v Direct Factory Outlets Homebush Pty Limited [2004] NSWLEC 538 DATES OF HEARING: 21/12/2004 EX TEMPORE 12/21/2004 JUDGMENT DATE : APPLICANT Mr T McAvoy instructed by Shaw Reynolds Lawyers LEGAL REPRESENTATIVES: FIRST RESPONDENT B J Skinner instructed by Baker & McKenzie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 21 December 2004 40863 of 2002 Allen Carriage v Stockland Development Pty Ltd & Ors No 9 EX TEMPORE JUDGMENT 1 Her Honour: I have before me an urgent Notice of Motion brought on this morning by the Applicant's solicitor in which the order is sought that, in the interests of justice, the Applicant's order for costs entered by the Court on 20 December 2004 be payable forthwith. The Notice of Motion arises from a judgment I gave in this matter yesterday, Carriage v Stockland Development Pty Ltd & Ors [No 8] [2004] NSWLEC 727 ("Carriage [No 8]") in which I made orders to the effect that the First Respondent is to pay the costs of the Applicant in relation to grounds 1 and 2 of these proceedings and also the costs of the motion in that matter. I also made a finding that I should not make any order as to costs on ground 4. 2 The matter is before me today on the basis that there is an urgent need to clarify the orders made yesterday and that I make the order sought forthwith. The application relies in part on Pt 52A r 9 of the Supreme Court Rules. While these are adopted by the Land and Environment Court Rules in Pt 16 I note that the relevant rule suggests that in fact the adoption may be only partial, but in the interests of time I am not going to resolve now whether or not Pt 52A of the Supreme Court Rules is completely adopted for the purpose of these proceedings. I will have regard to Pt 52A r 9(3)(a)(iii) of the Supreme Court Rule which refers to "justice otherwise demands" that I make the order sought as that is the basis on which this has been pursued by the Applicant. I consider this can be dealt with under s 69 of the Land and Environment Court Act 1979 in any event. 3 I dealt with some of these issues in completely separate proceedings Westfield Management Limited and Ors v Direct Factory Outlets Homebush Pty Limited [2004] NSWLEC 538. That was also a matter where, although the circumstances were different, I was asked to make an order that costs be payable forthwith. I canvassed at par 7-12 a number of authorities in this area including Fiduciary Limited v Morningstar Research Pty Limited [2002] NSWSC 432, ASIC v Rich [2003] NSWSC 297, Kyabram Property Investments Pty Limited v Murray; Murray v Duddy [2003] NSWSC 286, also Linfox Transport Australia Pty Limited v Ellul & Ors [2003] NSWSC 396 as follows: I note that Pt 52A is not fully adopted by Pt 6 of the Land and Environment Court Rules and the Rules do not make specific provision regarding the time at which costs are to be assessable. While I accept the Applicants' argument that there is some doubt as to whether the Land and Environment Court Rules fully adopt Pt 52A of the Supreme Court Rules, I consider that the discretion given to me in relation to costs by s 69(2)(a) of the Land and Environment Court Act 1979 is sufficiently broad to encompass an order that the costs ordered payable by a party be assessable immediately. Before I consider whether I should make such an order in these proceedings it is appropriate that I first consider the judgments of the Supreme Court in relation to the circumstances in which such an order should be made. In Morning Star Research Pty Limited Barrett J held that it was appropriate, in the circumstances of that case, to order that costs awarded in relation to an unsuccessful application made by the plaintiffs for various interlocutory injunctions be assessable immediately. Barrett J identified at [11] to [13] the three circumstances which would indicate that the discretion to order costs assessable forthwith should be exercised: (a) where the application or aspect in respect of which the particular costs order is made before conclusion of the proceedings represents the determination of a separately identifiable matter or may be viewed as the completion of a discrete aspect; (b) some unreasonable conduct on the part of the party against whom costs have been ordered; and (c) the fact that the remainder of the proceedings may continue for some extended time before being finally disposed of. In ordering that costs be assessable immediately, Barrett J was influenced by the fact that following the orders made in the interlocutory proceedings, an order was made authorising the filing of new pleadings with the result that it was likely that the final determination of the matter would occur more than a year after the costs order in the interlocutory hearing. Accordingly, "the interlocutory hearing may be regarded as a separate and completed phase of the proceedings". Barrett J held at [18] that these factors in combination plus the fact that the plaintiffs had served on the defendants volumes of material which was not relied on at the interlocutory hearing, presented "sufficient reason, in the interests of justice, for departing from the general rule reflected by Part 52A rule 9(1)." ASIC v Rich concerned an application made by certain of the defendants for orders against the plaintiff in relation to discovery. The matter was ultimately resolved by consent orders, leaving only the question of an application made by the defendants for costs, to be assessable forthwith. Austin J held that, while the usual rule was that costs were not awarded in relation to consent orders, the consent orders eventually agreed to by the plaintiff were inconsistent with the approach that it had previously adopted and the defendants were substantially successful in obtaining, by consent orders, the relief they sought in their application, making them entitled to an order for costs. In relation to the application that the costs be assessable forthwith Austin J noted at [86] to [88] that: … the unavoidable fact is that the issues to be resolved at the final hearing are likely to require consideration of a great volume of complex evidence over an extended hearing time. It is relevant to note that according to Practice Note 100 (Commercial List and Technology and Construction List), paragraph 23, where an order for costs is made on an interlocutory application in that List, the normal rule is that the party benefiting from the order may proceed to assessment forthwith. It seems to me that the present case is much more akin to the kinds of cases litigated in the Commercial List than to the more typical Equity Division cases. I have decided, therefore, that this is an appropriate case in which to order that costs be assessed and paid forthwith. In reaching this conclusion, I have decided that it is unnecessary and inappropriate to attach any significance to any aspect of the conduct of the plaintiff or its officers in the course of the litigation. Kyabram Property Investments was an ex tempore judgment of Shaw J regarding an application brought by the defendants on the first day of the trial, seeking an adjournment in order to amend their pleadings so as to raise a new defence. Shaw J granted the defendants leave to file an amended cross claim. The defendant did not dispute that it was liable for a costs order against it in relation to its application, however the defendants did dispute the plaintiff's claim that such costs should be assessable forthwith. One of the parties made submissions that unless costs were payable forthwith, the financial strain on him was such that he may not be able to afford continued representation in the proceedings. Shaw J held at [15] that: Sympathetic as I am to those who must be burdened by what have been lengthy proceedings, and who are additionally burdened by this belated application for amendment and adjournment, I do not think that there are sufficient grounds for leave to be granted or for the unusual order sought being made. Campbell J, sitting in the Equity division of this Court, said in Equityloan Limited v Windy Dropdown Pty Limited (Unreported, NSWSC, 12 March 2003) that the principle underlying the Rules is one designed to ensure that: There are not applications for taxation or assessment of costs which are made repeatedly in the course of a matter coming to trial. In these circumstances the usual rule for the payment of costs ought to be made. In Linfox Transport the plaintiff brought an appeal in relation to certain directions made by the Registrar for the case management of the proceedings. The Plaintiff was successful and applied to the Court for its costs, arguing that those costs should be assessable forthwith. Shaw J held that it was appropriate that the question of costs be reserved until the final determination of the proceedings. In relation to the application that the costs be assessable immediately, Shaw J held at [25] that "both the Rules and principle mean that such an order is exceptional rather than the norm." I will adopt those paragraphs. 4 I will simply note for the purposes of this oral judgment that essentially it is clear that such orders are made in exceptional circumstances and/or where there is unreasonable conduct justifying such an order and it does not appear to me that those circumstances exist in the case before me. 5 Essentially I also adopt the submissions put by Mr Skinner on behalf of the First Respondent that there is no evidence before me as to why it is in the interests of justice that costs be payable forthwith. The Applicant has sought to rely on the fact that there are bankruptcy proceedings against the Applicant currently in train in the Federal Magistrates Court. It seems to me however that in any costs application I need to consider the matter before me and that is the carriage of this litigation. While it is true that I was prepared to entertain a costs application yesterday on an urgent basis it seems to me that essentially I must be guided by what has occurred in the proceedings before me. It is not clear to me at all why I need to vary a costs order in order to clarify the Applicant's position in the bankruptcy jurisdiction of the Federal Magistrates Court which proceedings are completely unrelated to the matters before me. No proper explanation has been brought forward by the Applicant to explain why this order can or should be made in the circumstances. I therefore refuse the application. Orders 6 The Court makes the following orders: 1. Applicant's Notice of Motion dated 21 December 2004 is dismissed. 2. The Applicant is to pay the First Respondent's costs in relation to that Notice of Motion. 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