Land and Environment Court of New South Wales CITATION : John Griffin trading as John Griffin Constructions Development v Mosman Council [2009] NSWLEC 1004 APPLICANT John Griffin Construction Development PARTIES : RESPONDENT Mosman Council FILE NUMBER(S) : 10782 of 2007 CORAM: Registrar Dixon KEY ISSUES: COSTS :- Notice of Motion Grant v Kiama Municipal Council [2006] NSW LEC 70 CASES CITED: Prot Stephens Council v Sansom(2007) 156 LGRA 125 Arden Anglican School v Hornsby Shire Council [2008] NSW LEC DATES OF HEARING: 17/12/2007, 14/03/2008 DATE OF JUDGMENT: 9 January 2009 APPLICANT John Griffin, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Ms J Hewitt, solicitor of HWL Ebsworth Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Registrar Dixon 09 January 2009 10782 of 2007 John Griffin trading as John Griffin Constructions Development v Mosman Council JUDGMENT 1 A. The Applicant moves on the Notice of Motion filed with the Court on 2 May 2008 and relies on the affidavit evidence of Mr John Griffin and Mr Jason Hones together with various correspondence to claim the following relief: 1. That the Respondent pays the costs thrown away as a consequence of the Respondent's Notice of Motion dated 11 September 2007. 2. That the Respondent pays the costs thrown away as a consequence of the Respondent's failure to act in accordance with the instruction of the Court on the 14th of March 2008 to lodge conditions agreed on that date within 5 days. 2 Mr Griffin represented the Applicant. The Applicant's previous lawyer Mr Hones ceased to act for the Applicant from about 30 April 2008. 3 The Respondent was represented by Ms Hewitt solicitor and opposed the orders sought and relied on various affidavits sworn by Ms Hewitt. Background 4 The Class 1 development appeal concerned an application to replace an existing residential flat building with a dwelling house The development was dependant upon the Applicant proving the fact of existing use rights. The Respondent by Notice of Motion dated 11 September 2007 raised a legal issue in respect of the existing use claim. The legal aspect of the existing use claim was not pursed by the Respondent. The Respondent's Notice of Motion dated 11 September 2007 was dismissed and costs were not with the consent of the Applicant reserved. 5 It should be noted that the issue of whether an existing use rights claim existed was still a substantial issue in the appeal. 6 The Applicant's first claim in this Motion is for the costs associated with the legal issue raised by Notice of Motion dated 11 September 2007. The Applicant claims that it incurred legal expenses in respect of investigation of this legal issue despite the fact that the issue was abandoned by the Respondent. 7 The Court heard the appeal on 17 December 2007 and 14 March 2008. The appeal Court ultimately upheld the appeal but not before the hearing was adjourned part heard to allow the Applicant time to prepare and file amended plans in the proceedings. 8 Commissioner Murrell's judgment was delivered on 14 March 2008. The judgment makes clear that the Court and the Respondent dealt with a development that significantly changed during the appeal process and states at paragraph 27: "...In my overall assessment I see no reason for the appeal not to be upheld on the basis of the amended plans. As noted above, the amended plans are significantly different from the set against which the appeal was lodged that would not have warranted approval" Costs 9 The hearing of this Notice of Motion for costs commenced before the Registrar on 26 June 2008 and was adjourned to allow the Applicant time to file affidavit evidence from its previous solicitor Mr Hones in response to Ms Hewitt's' affidavit. The Respondent was also given an opportunity to file any further evidence in response. 10 The hearing resumed before the Registrar on 15 July 2008 and was adjourned for a second time to allow the Applicant an opportunity to investigate accounts rendered by its barrister Mr Hemmings and if necessary allow the Respondent to respond further. 11 The Applicant filed and served a fax dated 21 July 2008 in respect of its barrister Mr Hemmings account and a further fax on 31 July 2008 enclosing a further account from its lawyer Mr Hones in the sum of $2000. 12 The Applicant asked the Court to include the latter accounts as part of the costs claims. Law 13 The starting point when considering a costs claim in Class 1 proceedings is that there will be no costs order. Rule 3.7(2) of the Land and Environment Court Rules, which applies in Class 1 proceedings, provides: 14 3.7 Costs in certain proceedings (2) The Court is not to make an order for costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances." 15 Rule 3.7(3) provides the circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation). The rule lists circumstances similar to the indicative guidelines formulated under the old rule in Grant v Kiama Municipal Council [2006] NSW LEC 70 at [15] by Preston CJ, and approved by the Court of Appeal in Prot Stephens Council v Sansom(2007) 156 LGRA 125 at [56]. 16 As the Court commented in Arden Anglican School v Hornsby Shire Council [2008] NSW LEC at [9] "In the end, the question is whether, in the opinion of the Court, the reasons are of sufficient weight to overcome the presumptive rule. Evidence / Submissions 17 Commissioner Murrell's judgement provides an insight into the extent of amended plans. The Commissioner not only describes the amended plans as "significant " but goes onto say that the original plans filed with the appeal were so unacceptable and that they would not have been capable of being approved. It is only the amended plans, which facilitated an approval. 18 The Applicant's evidence is that the council, having been directed by the Court to file final conditions within 5 days, failed to file the conditions within that 5 day period. The Applicant's submitted that the Council's delay caused unnecessary costs for the Applicant. It is these additional legal costs which the Applicant seeks to be compensated for. 19 The Applicant submitted the delay in filing the final conditions was caused only by the Council. 20 The Council's evidence is that the Applicant was responsible in part for the delay in the filing of the final conditions. 21 The Council submits that it is a common practice for conditions to be fine tunned after a hearing 22 The Council submits that the Applicant did not raise any issue with the delay or ask that the matter be relisted before the Court. 23 The Applicant seeks its costs thrown away (including counsel's costs) incurred as a result of the Council not pursuing the legal issue of the existing use claim, as raised in the Council's Notice of Motion dated 11 September 2007. 24 The evidence is that the Council did by Notice of Motion raise a legal issue in respect of the interpretation of the clause and existing use right. The evidence is that that issue was fixed for determination but not perused. 25 The Council says it did not pursue the legal aspect of the existing use claim. The Council's evidence is that the Applicant's solicitor agreed that costs would not be reserved in respect of that aspect of the case. The Court was referred to affidavit evidence of Mr Hones and Ms Hewitt in respect of each solicitor's recollection of the issue. 26 The Applicant's evidence is that Mr Hones did not abandon any claim for costs thrown away in respect of the legal issue abandoned by the Council. The Applicant's evidence is that M Hones reserved the Applicant's position in respect of costs. 27 The Council's evidence is that costs thrown away were not reserved. The Court was referred to correspondence and ecourt communications in respect of the issue Conclusion 28 Having considered all of the evidence I am not satisfied that it would be fair or reasonable to depart from the ordinary rule and order that there should be a costs order against the Respondent in these proceedings. 29 The Applicant had the opportunity to amend it plans significantly during the course of the appeal and but for that amendment the appeal would not have been approved. 30 There is no evidence to support the Applicant's case that the costs of the Notice of Motion raising the point of law were reserved. In fact the Court file does not record that fact nor does Mr Hones' ecourt communication to the Court. The Court Orders: 1. The Notice of Motion filed on 2 May 2008 is dismissed. 2. The Applicant is ordered to pay the Respondent's of this Notice of Motion costs as agreed or assessed. **************************** I HEREBY CERTIFY THAT THE PRECEDING 34 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF REGISTRAR DIXON. 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.