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. However as I pointed out in the recent judgment in the Manly Council case (which has been cited in argument) the principle does not apply automatically or inexorably and ultimately the question of discretion to order the payment of costs in the context of the Court's general policy that costs in class 1 and 2 proceedings are not generally awarded save for exceptional circumstances requires a consideration of the facts of each case and in particular as I pointed out in that case, the conduct of the parties in the litigation and in matters relevant thereto. In a nutshell, the Applicant in the present case claims that the reason for the discontinuance was the belated raising in the Council's case of an entirely new and different case from that which had been presented at the time of the filing of the appeal and that which had been outlined when the matter was before the Registrar at callover when the issues were identified. I am satisfied that at those respective times the Applicant was entitled to the view that the appeal was essentially confined to a condition imposed upon the grant by the Council of development consent to the Applicant's development application requiring the deletion of one of two residential floors of the proposed development (which was a mixed development of commercial and residential) and that the considerations relevant to the appeal against that condition as identified by the Council at callover, involved questions of height and bulk. However all this was to dramatically change in the short litigation history of the case and within a period of just a fortnight before the fixed hearing date the Council acting upon advice of a consultant planner (whose services had been retained in the proceedings by the Council because the Council planners had recommended approval to the development) whose advice was that the Council should raise some 11 or 12 additional issues and whose professional opinion was firmly against any consent being granted including the conditional development consent that had been granted by the Council requiring the deletion of one floor. Having regard to the timing (that is the belatedness of the raising of those issues) and to the nature and consequences of the new case sought to be raised on the legitimate expectation of the Applicant in the litigation (which had no doubt been conducting itself on the basis of an appeal limited to the imposition of the condition deleting one residential storey from the development) I am of the opinion that in the circumstances of this case the discontinuance of the proceedings by the Applicant was a reasonable and unexceptional response to the dramatically changing scenario presented by the Council's belated change of decision in the case. Although it is true, as Mr Carson on behalf of the Council has pointed out, that it would have been open to the Applicant to have agreed to a vacation of the hearing dates and it would have been open to the Applicant to have prepared a case against the new case that the Council was obviously now wishing to raise, I accept the submission of Mr Schofield on behalf of the Applicant that those entitlements truly have the flavour of a theoretical possibility (rather than a realistic prospect) given the history of the development application and the point reached within two weeks of the hearing of the appeal where up to that point the Applicant thought its case was simply against the imposition of the condition reducing the development by one residential floor. I also accept, of course, the proposition advanced by Mr Carson on behalf of the Council that even where an appeal is taken against a condition of development consent, it is open to the Court in the exercise of its statutory jurisdiction to refuse development consent outright and that having regard to this expansive power it follows that it is always open to a Council faced with an appeal against a condition of development consent to present a case for development consent to be refused. There are cases in the Court which have so decided but I am bound to say for myself, that it is highly exceptional that such an outcome of an appeal against a condition of development consent could or should give rise to such a decision. In saying this, I put aside the question of the cruciality of the condition appealed against to the whole concept of the approved development. That is not the case here, where the Council's new case was that development consent should be refused on account of the unacceptable nature of the dev elopment on many grounds far transcending the cruciality of reducing the building to three levels instead of four. It is in these circumstances that I regard the discontinuance by the Applicant within a matter of a few days before the hearing fixture to be unexceptionable and not unreasonable and that it reflected a reasonable response to a reality encountered by the Applicant by the Council's dramatically changed stance in the proceedings. Notwithstanding my acceptance of the propositions advanced by Mr Carson concerning the scope of an appeal of the type here involved and the entitlement of the Council to raise a wider case against the proposal than that one which is reflected in its actual determination of the application, the fact that a changed case arose so belatedly and was in truth a volte-face by the Council, is sufficient reason in my opinion to regard the Council's conduct in the litigation as necessarily disqualifying of any entitlement (including the presumptive entitlement) to costs against a party who discontinues the proceedings. It follows that in my opinion the Motion for costs brought by the Council mus t be dismissed. As I pointed out at the beginning of these reasons it is an extremely unlikely case that costs would be awarded in favour of a party who discontinues proceedings. Although it is theoretically possible for costs to be awarded against an unsuccessful party in litigation (that would include a discontinuing party) the circumstances must be highly exceptional for such a result to be reached. The position is a fortiori within the context of the Court's general policy not to award costs in class 1 and 2 proceedings. I am not satisfied that the Applicant has made out a case for costs in its favour. Accordingly the Applicant's Motion for costs is likewise dismissed. For all the foregoing reasons, I make no order for costs in the proceedings. 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.