Moodley v Botany Bay City Council [2004] NSWLEC 762

Land and Environment Court of New South Wales

CITATION : Moodley v Botany Bay City Council [2004] NSWLEC 762 PARTIES : Thesigan Moodley (Appl) Botany Bay City Council (Resp) FILE NUMBER(S) : 11438 & 11440 of 2003 CORAM: McClellan CJ KEY ISSUES: Costs :- Application for concurrence or otherwise by Chief Judge of a Commissioner's costs determination Sum of costs fixed LEGISLATION CITED: CASES CITED: DATES OF HEARING: 17 June 2004 EX TEMPORE 06/17/2004 JUDGMENT DATE :

T Moodley (in person - Appl) LEGAL REPRESENTATIVES: T O'Connor (Sol - Resp) Houston Dearn O'Connor (Sol - Resp)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

McCLELLAN J

THURSDAY 17 JUNE 2004

11438/03 & 11440/03 MOODLEY v BOTANY BAY CITY COUNCIL

JUDGMENT 1 HIS HONOUR: This matter comes before me this morning to consider whether or not I should exercise my discretion to concur in an order for costs proposed by Commissioner Hussey. The proceedings before Commissioner Hussey were merit appeals in relation to a proposal to modify an existing dwelling and for the demolition and construction of a new dwelling. Both proposals relate to the same site. 2 The appeal has a history, which included the provision of amended plans. It was following the provision of those plans that the Commissioner was able to resolve the matter in favour of Mr Moodley. Mr Moodley made an application to the Commissioner for an order for costs of the proceedings. The Commissioner, in a reasoned decision, determined that as the matter did not raise any considerations beyond those relevant to the usual merit appeal, an order for costs of the proceedings was not appropriate. However, the Council sought an order for the costs of the costs hearing and the Commissioner determined that, subject to my concurrence, he would make such an order. 3 The costs hearing was allocated a separate hearing day and, as I understand it, took at least two hours. Evidence was tendered by both parties, which included affidavit evidence from the Council. Apparently there were disputes in relation to conversations and the nature of concessions, which had been made in the course of negotiations in relation to the site. Those disputes do not seem to have loomed large in the resolution of the matter by the Commissioner. One central issue was the question of the provision of positive covenants, which the Commissioner considered and dealt with. The Commissioner's conclusion was expressed in the following terms: "As that process has generally occurred in this case, I am satisfied that the revised application has been dealt with in an appropriate way and that the applicant has not presented any compelling evidence in respect of the other grounds for the granting of costs on a fair and reasonable basis. Accordingly, I consider the application for costs should be dismissed." 4 In the ordinary course, when an application for costs is made in class 1 proceedings, it can be anticipated that it will be made during the course of the substantive proceedings and no extra cost burden will be incurred. However, whereas in the present case, a separate hearing day is necessary and the parties bring evidence that they submit is relevant to the resolution of the costs matter, different considerations arise. In those circumstances it seems to me that a party who seeks an order for costs and fails, should expect that the successful party will be likely to receive an order for costs. Of course the purpose of a costs order is to compensate a party for the expense of litigating a matter upon which it ultimately succeeds. In the present case, as I have indicated, Mr Moodley made an application for costs which failed. Accordingly, by making the application for an order for costs, Mr Moodley has caused the Council to expend monies in defending the application, which it would not otherwise have incurred. 5 In those circumstances, I am satisfied that the order which the Commissioner proposes is appropriate and, accordingly, I concur in the making for such an order. Before me, the Council has indicated that it seeks a sum of $3,500 as its costs, both of the costs hearing and of the hearing before me today. In my opinion, the amount which the Council can recover should be significantly reduced from that sum and I am of the opinion that a sum of $1,500 is reasonable in the circumstances. 6 Accordingly, my decision is that I concur in the order that the applicant pays the respondent's costs of the application for the costs of the merit appeal, such order to be in the sum of $1,500. I should indicate, lest there be any misunderstanding, I consider that that sum is appropriate compensation, both in relation to the costs hearing before Commissioner Hussey and the hearing before me today. **********