Roden v Bandora Holdings Pty Ltd (No 2) [2015] NSWLEC 202

Land and Environment Court New South Wales

Medium Neutral Citation: Roden v Bandora Holdings Pty Ltd (No 2) [2015] NSWLEC 202 Hearing dates: Written submissions of the First Respondent filed 17 November 2015 and the Applicant filed 1 December 2015 Date of orders: 22 December 2015 Decision date: 22 December 2015 Jurisdiction: Class 4 Before: Pain J Decision: See [14] Catchwords: COSTS – respondent seeks costs of two notices of motion to strike out two identical notices to produce – determination of issue by Court and capitulation by applicant in withdrawing the second notice to produce – exercise of Court's discretion to make a costs order on basis that costs should follow the event Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 Category: Costs Parties: Colin Roden (Applicant) Bandora Holdings Pty Ltd (First Respondent) Byron Shire Council (Second Respondent) Representation: Counsel: Mr F G Kalyk (Applicant) Mr S Nash (First Respondent) Submitting appearance (Second Respondent)

Solicitors: Wilshire Webb Staunton Beattie Lawyers (Applicant) McCartney Young Lawyers (First Respondent) Marsdens Law Group (Second Respondent) File Number(s): 40019 of 2015

Judgment 1. During the substantive hearing on 21 October 2015 of the Applicant's judicial review proceedings, now dismissed in Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191, the Applicant called on a Notice to Produce for Inspection dated 7 October 2015 addressed to the First Respondent. The First Respondent filed in Court a Notice of Motion dated 20 October 2015 seeking to set aside that Notice to Produce and sought to press it immediately. Following discussion with me the Notice to Produce was not pressed by the Applicant on 21 October 2015. The First Respondent now seeks its costs of preparing the Notice of Motion dated 20 October 2015 and its costs of an earlier Notice of Motion dated 18 June 2015 which sought to set aside an earlier identical Notice to Produce to Court dated 12 June 2015. The first Notice of Motion dated 18 June 2015 was returnable before Pepper J on 30 June 2015. It was not determined and consent orders were made on that date. 2. The parties requested that this costs application be dealt with on the basis of written submissions and an agreed bundle of documents. No separate hearing was necessary. 3. A further Notice to Produce for Inspection dated 15 October 2015 which sought material relating to landscaping was not called on before me (referred to in the First Respondent's Notice of Motion dated 20 October 2015). I will not consider that Notice to Produce as part of this ruling.