Land and Environment Court New South Wales Medium Neutral Citation: Warriewood Vale Pty Ltd v Northern Beaches Council (No 3) [2017] NSWLEC 22 Hearing dates: 24, 28 February 2017 (written submissions) Date of orders: 08 March 2017 Decision date: 08 March 2017 Jurisdiction: Class 1 Before: Pain J Decision: The Intervenors must pay the Applicant's costs of the notice of motion filed 16 February 2017. Catchwords: COSTS – fair and reasonable to award costs in relation to failed application of intervenors to vacate hearing in Class 1 appeal Legislation Cited: Civil Procedure Act 2005 s 98 Land and Environment Court Rules r 3.7 Cases Cited: Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd [2011] NSWCA 128 Warriewood Vale Pty Ltd v Northern Beaches Council (No 2) [2018] NSWLEC 21 Category: Costs Parties: Warriewood Vale Pty Ltd (Applicant) Northern Beaches Council (Respondent) John Peter Gigliotti (First Intervenor) Peter Gualtieri (Second Intervenor) Teresa Gualtieri (Third Intervenor) Vincenzo Sacco (Fourth Intervenor) Representation: COUNSEL: J Reid (Applicant) E Gentle (Respondent) M Tibbey (Intervenors) SOLICITORS: Pikes & Verekers Lawyers (Applicant) King & Wood Mallesons (Respondent) LC Muriniti & Associates (Intervenors) File Number(s): 16/151186 Judgment Costs 1. The Applicant seeks its costs of the Notice of Motion filed on 16 February 2017 by the Intervenors. This was dismissed by me in Warriewood Vale Pty Ltd v Northern Beaches Council (No 2) [2017] NSWLEC 21. Relevant background to these proceedings is set out in that judgment. Relevant legislation 1. The Civil Procedure Act 2005 (NSW) (CP Act) confers a general power on courts in NSW to order costs: Part 7 Judgments and orders Division 2 Costs in proceedings 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. … 1. The Land and Environment Court Rules 2007 (NSW) (Court Rules) provide further guidance on the exercise of discretion on costs in Class 1 proceedings: Part 3 Proceedings in Class 1, 2 or 3 of the Court's jurisdiction 3.7 Costs in certain proceedings (1) This rule applies to the following proceedings (except for appeals under section 56A of the Act): (a) all proceedings in Class 1 of the Court's jurisdiction, ... (2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. (3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following: (a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question: (i) in one way was, or was potentially, determinative of the proceedings, and (ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings, (b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents: (i) that are required by law to be provided in relation to any application the subject of the proceedings, or (ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application, (c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings, (d) that a party has acted unreasonably in the conduct of the proceedings, (e) that a party has commenced or defended the proceedings for an improper purpose, (f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where: (i) the claim or defence (as appropriate) did not have reasonable prospects of success, or (ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable. Applicant's submissions on costs 1. The Applicant submitted that an order for costs of the motion would be fair and reasonable. The Intervenors had no standing to move the Court for the orders sought and the motion was made late. The Intervenors knew on 16 September 2016 that they wished to call further evidence and took no steps to make an application to do so until the week before the hearing. The Intervenors also made a strategic decision not to lodge an earlier development application in respect of their land evidenced by the letter of Evolution Planning dated 31 March 2016. In response to the motion the Applicant was put to the expense of preparing the detailed affidavit of Mr Bush and attending the hearing on the motion. Intervenors' submissions on costs 1. The Intervenors were following a responsible course of action in bringing this matter to the attention of the Court. They ought not to be at risk of costs in so doing. The orders sought were not frivolous, vexatious or unreasonable in the circumstances. The limits on the rights and entitlements of an intervenor in the Land and Environment Court are not abundantly clear and the issues are largely untested under the Court Act. 2. The Intervenors brought to the Court's attention potential problems in not intervening where there are now two related proceedings on foot. The motion was filed shortly after the expert conclave giving rise to these issues and the Intervenors sought for it to be heard earlier than the hearing before the Duty Judge on 23 February 2017. The hearing on the motion was conducted appropriately and the Intervenors were clear, careful and succinct in their submissions. Fair and reasonable to award costs to the Applicant 1. Under s 98(1) of the CP Act costs are in the discretion of the court subject to any rules of the court. In Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd [2011] NSWCA 128 at [25] the Court of Appeal found that s 98(1) confers a general power on a court to make costs orders against parties and non-parties alike. Here the Applicant seeks a costs order against the Intervenors who are not parties to the proceedings. I dismissed the Intervenors' notice of motion because the Court lacked the power to make the order for the vacation of hearing dates of the Applicant's Class 1 appeal sought inter alia. 2. Under r 3.7 of the Court Rules costs in Class 1 proceedings are awarded where it is fair or reasonable to do so. The usual practice in Class 1 proceedings is that each party pay their own costs, the 'no discouragement principle' approach to costs in matters of that type. For the reasons given by the Applicant its costs should be paid by the Intervenors. In that regard it is useful to refer to r 3.7(3). The circumstances specified in r 3.7(3) are not exhaustive but provide useful guidance on when a costs order might be considered. This matter has some similarity to r 3.7(3)(f)(i) in that I held that the Court did not have power to make the orders sought. 3. Contrary to the Intervenors' submissions summarised above, I consider the rights and entitlements in relation to intervenors are abundantly clear. They are whatever the Court determines at the time intervention is permitted. Intervenors do not and never have had the rights and entitlements of a party. The lack of cases about this, if that be the case, reflects that general understanding in my view. 4. The Court orders that: 1. The Intervenors must pay the Applicant's costs of the Notice of Motion filed 16 February 2017. ********** 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: 10 March 2017