Land and Environment Court of New South Wales CITATION : Collins v McElhone [2007] NSWLEC 45 APPLICANT PARTIES : Mei Collins RESPONDENT Barbara McElhone FILE NUMBER(S) : 40110 of 2006 CORAM: Pain J KEY ISSUES: Costs :- exercise of discretion to award costs in contested Class 4 proceedings LEGISLATION CITED: Land and Environment Court Act 1979 s 69 CASES CITED: Collins v McElhone [2006] NSWLEC 348; Oshlack v Richmond River Council (1993) 193 CLR 72 DATES OF HEARING: 2 February 2007 EX TEMPORE JUDGMENT DATE : 2 February 2007 APPLICANT Mr S Berveling SOLICITOR LEGAL REPRESENTATIVES: Hanes & Co RESPONDENT Mr R O'Gorman-Hughes SOLICITOR Minter Ellison JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 2 February 2007 40110 of 2006 Mei Yu Collins v Barbara McElhone EX TEMPORE JUDGMENT ON COSTS 1 Her Honour: I handed down my decision in this matter Collins v McElhone [2006] NSWLEC 348 on 21 June 2006 and made the following orders: 1. The Class 4 application is dismissed. 2. The Respondent's undertaking is noted. 3. Costs are reserved. 2 The Respondent now seeks her costs of the proceedings on the basis that she was the successful party and there is no disentitling conduct on her part. Section 69 of the Land and Environment Court Act 1979 provides the Court with broad discretion on costs. The usual rule in civil enforcement proceedings is that the successful party is entitled to a costs order in its favour unless there is disentitling conduct; see Oshlack v Richmond River Council (1998) 193 CLR 72 per McHugh J at 97 - 98. The Applicant agrees with these submissions but says that there is disentitling conduct and that this application for costs is premature. 3 Both parties relied on correspondence between the parties' solicitors before the proceedings were commenced in which settlement discussions were raised which were ultimately unsuccessful. I do not consider this correspondence shows any disentitling conduct on the Respondent's part. 4 The Applicant was allowed to file in Court, over objection by the Respondent because of lateness, an affidavit sworn by her on 1 February 2007 which concerned in part her view of events since the hearing as to whether the Applicant's undertaking referred to in my judgment had been complied with. Objection was also raised by the Respondent about the relevance of this material although I allowed it to be read in part. Having now heard argument on this issue I agree with the Respondent and consider this material is irrelevant to the issue before me as to whether costs should be awarded to the Respondent. It is the parties' conduct before and during the proceedings which is important to consider. I am not aware of any case where events after the delivery of a final judgment have been considered relevant to whether costs of the proceedings should be awarded. None has been provided to the Court. As my judgment was final I do not consider that the matters raised by the Applicant should be considered by me. The fact that I took into account the undertaking in my decision which had then to be carried out does not alter the final nature of my judgment. 5 I therefore reject the Applicant's argument that the Respondent's actions in relation to the undertaking are relevant to the question of costs before me and I make no findings in that regard. If there are issues in relation to the undertaking they must be dealt with in separate proceedings and that is not a matter before me today. I do not consider this costs order is premature. 6 I consider the Applicant should pay the Respondent's costs of the proceedings and the costs of today's motion. Orders 7 The Court makes the following orders: 1. The Applicant is to pay the Respondent's costs of the substantive hearing. 2. The Applicant is to pay the Respondent's costs of today's notice of motion. 3. Exhibits may be returned 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.