Land and Environment Court of New South Wales CITATION : Tyree & Ors v National Trust of Australia & Anor [1989] NSWLEC 162 APPLICANT Tyree & Ors PARTIES : RESPONDENT National Trust of Australia & Anor FILE NUMBER(S) : 40230 of 1988 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: CASES CITED: Gould and Anor v. Vaggelas and Ors, 157 CLR, 215. DATES OF HEARING: DATE OF JUDGMENT: 02/24/1989 LEGAL REPRESENTATIVES: JUDGMENT: HIS HONOUR: This is a motion by the applicants in Matter 40230 of 1988 seeking orders that the first respondent, The National Trust of Australia, N.S.W., indemnify the applicants in relation to an order for costs made by me on 20th October, 1988, that the applicants pay the costs of the third respondent, Hiraz International Limited. The conduct of the National Trust relied upon by the applicants on this Motion is the letting of the subject premises for a commercial purpose without the consent of the responsible authority. The third respondent was an exhibitor who had leased the premises from the owner, The National Trust of Australia, and the second respondent is the consenting authority of the council buildings on this property at Woollahra. The applicants who were successful in the proceedings were owners and occupiers of adjoining premises. They had been complaining for some time to Council concerning claimed injury to their amenity as a consequence of the letting of the subject premises. When the matter came for hearing before me in relation to the proposed use by the third respondent, I was unpersuaded that I should make orders against the third respondent because of the conduct of the applicants and their delay in instituting proceedings, notwithstanding their awareness of the likelihood of the use of the premises in breach of the provisions of the Local Environmental Plan. I was also concerned that, in all the circumstances, there would be unreasonable hardship caused to the third respondent if orders were made against it as distinct from orders made against the owner of the property itself. In those circumstances I find it difficult to accept that the conduct of the first respondent is of the kind which could come within that described by Gibbs C.J. in Gould and Anor v. Vaggelas and Ors, 157 CLR, 215. In that matter, Chief Justice Gibbs explained that the mere fact that a joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay directly or indirectly for costs of another successful defendant. An order should only be made if the Court considers it just that the costs of the successful respondent should be borne by the unsuccessful respondent and, if nothing the successful respondent has said or done has led the applicant to institute proceedings against the other respondent who ultimately it was held not to be liable, it is difficult to see any reason why the unsuccessful respondent should be required to pay for the applicant's error. I therefore consider that I should not exercise my discretion to make the order sought, and I dismiss the Motion. I order the applicants to pay the respondents' costs of the motion. 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.