Tricare (Hastings) Limited v Tweed Shire Council (No 2) [2013] NSWLEC 207

Land and Environment Court New South Wales

Medium Neutral Citation: Tricare (Hastings) Limited v Tweed Shire Council (No 2) [2013] NSWLEC 207 Hearing dates: 11 November 2013 (written submissions) Decision date: 02 December 2013 Jurisdiction: Class 4 Before: Biscoe J Decision: Applicant pay 60 per cent of the second to fifth respondents' costs Catchwords: COSTS - apportionment for partial success on a discrete matter. Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 ss 53 and 30 Consumer, Trader and Tenancy Tribunal Regulation 2009 cl 20 Cases Cited: Tricare (Hastings) Limited v Tweed Shire Council [2013] NSWLEC 183 Category: Costs Parties: Tricare (Hastings) Limited (Applicant) Tweed Shire Council (First Respondent) Susan Jane Allen (Second Respondent) Beryl Edith Anderson (Third Respondent) Kevin and Lorraine Byng (Fourth Respondent) Robert and Helen Verrills (Fifth Respondent) Representation: COUNSEL: S Berveling (Applicant) N/A (Respondent) SOLICITORS: Minter Ellison (Applicant) Submitting appearance (First Respondent) Tenants Union of NSW Co-Op Ltd (Second to Fifth Respondents) File Number(s): 40629/13

Judgment 1In my reasons for judgment in this Class 4 matter on 31 October 2013, I ordered that the applicant pay the respondents' costs unless a party applied for a different costs order within 7 days, accompanied by written submissions: Tricare (Hastings) Limited v Tweed Shire Council [2013] NSWLEC 183. Within that time the applicant applied for a different costs order as against the second to fifth respondents, accompanied by written submissions. Thereafter I gave directions that the second to fifth respondents file and serve any submissions within a specified time (later extended to 22 November 2013 at the second to fifth respondents' request), but none have been filed. 2The applicant submits that the factual matrix of the proceedings is such that the appropriate order should be that each party pays its own costs, for the following reasons: (a)the declarations concerned the scope of a development consent; (b)it transpired that two of the three declarations sought were not opposed; (c)the applicant was successful in obtaining declarations 1 and 2; (d)the third declaration was not opposed other than in relation to the timing of the change of use; (e)neither the applicant nor the second to fifth respondents were wholly successful in relation to the third declaration; (f)the proceedings are related to and arise from proceedings in the Consumer, Trader and Tenancy Tribunal in which the starting point is that each party pays its own costs except in exceptional circumstances: Consumer, Trader and Tenancy Tribunal Act 2001 ss 53 and 30 and Consumer, Trader and Tenancy Tribunal Regulation 2009 cl 20. 3In the alternative, the applicant submits that the appropriate order be that the applicant pay no more than 50 per cent of the second to fifth respondents' costs, on the basis of the partial success of the second to fifth respondents in that they did not oppose declarations 1 and 2, failed in their primary submission re declaration 3, and only succeeded on their alternative submission re declaration 3. 4I do not consider that costs principles in the Consumer, Trader and Tenancy Tribunal are relevant. I accept that the relief sought by the applicant relating to the scope of the development consent was not opposed except in relation to the timing of the third declaration, and that the second to fifth respondents succeeded in the latter respect not on their primary submission but on their alternative submission. I am persuaded that the subject of the second to fifth respondents' partial success was sufficiently discrete such that there should be an apportionment of costs. Apportionment is not capable of mathematical precision. My assessment is that it would be fairly reflected by an order that the applicant pay 60 per cent of the second to fifth respondents' costs. 5The order of the Court is that the applicant pay 60 per cent of the second to fifth respondents' costs. 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. Decision last updated: 04 December 2013