Koompahtoo Local Aboriginal Land Council v KLALC Property and Investment Pty Ltd & Anor (No 2) [2006] NSWSC 885

New South Wales Supreme Court

CITATION : Koompahtoo Local Aboriginal Land Council v KLALC Property and Investment Pty Ltd & Anor (No 2) [2006] NSWSC 885 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 05/09/06 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 09/05/2006

DECISION : No order as to costs in either cross-claims.

CATCHWORDS : PROCEDURE - Costs - Rival cross-claims dependent upon success of a third party's cross-claim - Third party's cross-claim unsuccessful - Rival cross-claims therefore dismissed - Appropriate order for costs between rival cross-claimants

CASES CITED : Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166

PARTIES : Koompahtoo Local Aboriginal Land Council - Plaintiff Paramount Land Pty Ltd - 2nd Cross Defendant to 1st Cross Claim, Cross Defendant to 2nd Cross Claim, 3rd Cross Claimant

FILE NUMBER(S) : SC 4680/03

COUNSEL : Mr G Sirtes - Koompahtoo Local Aboriginal Land Council Mr C Wood - Paramount Land Pty Ltd

SOLICITORS : Bartier Perry - Koompahtoo Local Aboriginal Land Council Hugh & Associates, Lawyers - Paramount Land Pty Ltd

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

TUESDAY 5 SEPTEMBER 2006

4680/03 KOOMPAHTOO LOCAL ABORIGINAL LAND COUNCIL V KLALC PROPERTY & INVESTMENT PTY LTD & ANOR (NO 2) EX TEMPORE JUDGMENT 1 A cross-claim was filed by Koompahtoo Local Aboriginal Land Council against Paramount Land Pty Ltd in consequence of a cross-claim brought against it by LKM Capital Ltd. In consequence of the Council's cross-claim, Paramount brought a cross-claim against the Council. In my reasons for judgment of 28 August 2006, I found that LKM was not entitled to any monetary judgment against the Council. 2 The consequence was that both the Council's cross-claim against Paramount and Paramount's cross-claim against the Council fell away. I made an order that the third cross-claim by Paramount be dismissed, and I propose to make an order, that is not opposed, that the second cross-claim by the Council against Paramount be dismissed. 3 The question as to costs then arises. The Council submits that since both parties have failed with respect to their cross-claims, there should be no order as to costs. Paramount claims that the Council should pay its costs, including the costs of the cross-claim filed by it and, as a form of Bullock order, that the Council's liability to Paramount for costs should include any liability that Paramount has to LKM for costs. 4 The proceedings between Paramount and LKM were finalised by a judgment against Paramount. Paramount did not appear at the trial of the proceedings in which I gave my reasons for judgment. It was pointed out, however, that that factor ought not to be used to penalise Paramount by refusing an order for costs (Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 169-170). 5 In my view, the cross-claims in question fell away, as I have said, as a result of the failure of LKM to establish an entitlement to a monetary judgment against the Council. 6 It seems to me that the entitlements to orders for costs on both sides are equally poised, and in those circumstances, in the exercise of my discretion, I think it appropriate that there be no order as to costs. 7 I make orders in terms of the short minutes of orders regarding Paramount, initialled by me, dated by me and placed with the papers. **********