Stateland Developments Pty Ltd v Princi [2007] NSWSC 709

New South Wales Supreme Court

CITATION : Stateland Developments Pty Ltd v Princi [2007] NSWSC 709 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 27/06/07 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 27 June 2007

DECISION : No order as to costs.

CATCHWORDS : PROCEDURE - Costs - Action settled before hearing on the merits - Whether Court should entertain a shadow hearing of issues on an application for costs - Appropriate principles

CASES CITED : Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625 Chapman v Luminis [2003] FCA FC 162

PARTIES : Stateland Developments Pty Ltd - Plaintiff Rosaria Princi - Defendant

FILE NUMBER(S) : SC 2883/07

COUNSEL : Mr F G Lever SC - Plaintiff Mr M Cashion SC/ Mr M Izzo - Defendant

SOLICITORS : McGrath Dicembre & Co Solicitors - Plaintiff Watson Stafford Solicitors - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

WEDNESDAY 27 JUNE 2007

2883/07 STATELAND DEVELOPMENTS PTY LTD v ROSARIA PRINCI EX TEMPORE JUDGMENT 1 The parties to these proceedings, by considerable and commendable cooperation, have been able to resolve significant difficulties associated with the respective subdivisions of their properties without a hearing on the merits. 2 The plaintiff seeks an order for costs. The defendant submits that there should be no order as to costs. 3 In Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625, McHugh J considered the exercise of discretion with respect to costs where a hearing has not taken place. He said: "In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties ( Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201). To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action ( Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201). In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd [1971] QWN 13, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans.