Symchung Pty Limited v. Concord Council [1998] NSWLEC 111

Land and Environment Court of New South Wales

CITATION : Symchung Pty Limited v. Concord Council [1998] NSWLEC 111 APPLICANT Symchung Pty Ltd PARTIES : RESPONDANT Concord Council FILE NUMBER(S) : 10128 of 1998 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 29/05/98 EX TEMPORE JUDGMENT DATE : 05/29/1998

APPLICANT Mr P Schofield, Solicitor Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr D M Carson, Solicitor Lorton Duke & Co.

JUDGMENT: The Court has before it rival Motions seeking costs by the parties against each other in class one proceedings which were terminated on 21 April 1998 when the Applicant discontinued the proceedings which had been fixed for hearing by the Court on 23 and 24 April this year.

The circumstances outlining the litigation history and indeed the history to the development appeal including the circumstances leading to its termination by dint of the notice of discontinuance being filed on 21 April have been set forth in the affidavits that have been filed by the parties and I have been assisted by the competing argument which focuses attention upon the history of the development application and the proceedings in the Court. On the face of it an application for costs by a party against whom the proceedings have been discontinued obviously stands on firmer ground than an application for costs by the discontinuing party. This is because a discontinuance of proceedings generally indicates that costs have been wasted by virtue of the discontinuance of the proceedings, which means that the claim brought to the Court is never prosecuted to a conclusion. It is because of these considerations that the general practice in the Court in relation to costs in class 1 and 2 proceedings (and the present proceedings fall within class 1 of the Court's jurisdiction) is that a discontinuance of proceedings at a time particularly close to the fixed hearing date gives rise presumptively to an entitlement for costs in favour of the party discontinued against, at least to the extent of costs thrown away by the discontinuance.