Wentworth Shire Council v Bemax Resources Limited and Ors (costs) [2013] NSWSC 1364

Supreme Court New South Wales

Medium Neutral Citation: Wentworth Shire Council v Bemax Resources Limited and Ors (costs) [2013] NSWSC 1364 Hearing dates: 23 August 2013 Decision date: 12 September 2013 Jurisdiction: Equity Division Before: Rein J Decision: Wentworth Shire Council v Bemax Resources - proceedings 2011/259950 1. The defendant pay the plaintiff's costs of the proceedings on the ordinary basis not including costs incurred before the commencement of proceedings. 2. The costs of these proceedings to be assessed together with proceedings no 2012/299456 and 2012/349485 3. Interests on costs paid by the Council to its lawyers is payable in accordance with Drummond & Rosen v Easey (No 2) [2009] NSWCA 331 4. Grant liberty to the plaintiff to apply upon 3 days notice to the defendant for an order for payment of a specific amount in respect of the interest awarded upon costs pursuant to Order 3 Peregrine Mineral Sands Pty Ltd & Ors v Wentworth Shire Council - proceedings 2012/299456 1. The plaintiffs/cross-defendants pay the costs of the defendant/cross-claimant on the ordinary basis, not including costs incurred before the commencement of proceedings. 2. The costs of these proceedings to be assessed together with proceedings no 2011/259950 and 2012/349485 3. Interests on costs paid by the Council to its lawyers is payable in accordance with Drummond & Rosen v Easey (No 2) [2009] NSWCA 331. 4. Grant liberty to the defendant to apply upon 3 days notice to the plaintiffs for an order for payment of a specific amount in respect of the interest awarded upon costs pursuant to Order 3 Peregrine Mineral Sands Pty Ltd v Wentworth Shire Council - proceedings 2012/349485 (Class 3 proceedings) 1. The plaintiffs pay the costs of the defendant on the ordinary basis, not including costs incurred before the commencement of proceedings but referable to the proceedings. 2. The costs of these proceedings to be assessed together with proceedings no 2012/299456 and 2011/259950. 3. Interests on costs paid by the Council to its lawyers is payable in accordance with Drummond & Rosen v Easey (No 2) [2009] NSWCA 331 4. Grant liberty to the defendant to apply upon 3 days notice to the plaintiffs for an order for payment of a specific amount in respect of the interest awarded upon costs pursuant to Order 3. Catchwords: COSTS - whether or not costs should be ordered on the usual basis - whether the cost order should reflect the act that the relevant clause of the agreement was ultra vires - whether discovery was unnecessarily extensive - whether the class 3 proceedings were hopeless or the presumption under rule 3.7(3) of the Land and Environment Court Rules 2007(NSW) should be followed - whether the fact that proceedings were erroneously commenced against the joint venturers for the Gingko rates should have a bearing on the costs orders - whether any delay on the part of the Council in preparing the case should preclude an order for interest on costs. Legislation Cited: Civil Procedure Act 2005 (NSW) Land and Environment Court Rules 2007 (NSW) Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Commercial Union General Insurance Co Ltd v Patchell Industries Ltd (1993) 7 ANZ Ins Cas 61-171 Drummond & Rosen v Easey (No 2) [2009] NSWCA 331 Lahoud v Lahoud [2006] NSWSC 126 Category: Costs Parties: In 2011/255950 proceedings: Wentworth Shire Council (plaintiff) Bemax Resources Limited (defendant)