Syncept Chatham Pty Ltd v City of Ryde Council (No 2) [2020] NSWLEC 30

Land and Environment Court New South Wales

Medium Neutral Citation: Syncept Chatham Pty Ltd v City of Ryde Council (No 2) [2020] NSWLEC 30 Hearing dates: On the papers Date of orders: 17 April 2020 Decision date: 17 April 2020 Jurisdiction: Class 4 Before: Duggan J Decision: See paragraph 16 Catchwords: COSTS – which party to bear costs – whether late amendment alters usual order – whether separate ground rendered unnecessary by late successful ground should not be subject of costs – usual order made Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Barry Edward and Thelma June Harrington v Greenwood Grove Estate Pty Ltd (No 2) [2011] NSWSC 1598 Beoco Limited v Alfa Laval Co Limited [1995] QB 137 Syncept Chatham Pty Ltd v City of Ryde Council [2019] NSWLEC 170 Category: Costs Parties: Syncept Chatham Pty Ltd (Applicant) City of Ryde Council (Respondent) Representation: Counsel: T To and J Farrell (Applicant) G Farland and E Keynes (Respondent)

Solicitors: Mills Oakley Lawyers (Applicant) City of Ryde (Respondent) File Number(s): 2019/267216 Publication restriction: No

Judgment

Background facts 1. These proceedings relate to the Applicant's challenge to the validity of an Interim Heritage Order (IHO) made in connection with its land. I determined those proceedings in the principal judgment Syncept Chatham Pty Ltd v City of Ryde Council [2019] NSWLEC 170. The facts and findings I made in connection with the substantive proceedings are relied upon but are not repeated here. The matter is now before me to determine the issue of costs of the proceedings. 2. On 8 November 2019 I made the following declaration: … any Interim Heritage Order made by the Respondent pursuant to the resolution of the Council on 27 February 2019 pursuant to s 25 of the Heritage Act 1977 in respect of the land known as Lots 13 and 14 DP 9166 located at 68-70 Chatham Road, Denistone was made in breach of paragraph 1(b) of the Ministerial Authority made on 12 April 2013 and is invalid. 1. At that time I was inclined to make the usual order as to costs (as modified to reflect the raising of Ground 2 on the first day of the hearing), as neither party had addressed me to suggest otherwise. I indicated that intention in the proposed order in the following terms: Respondent is to pay the Applicant's costs of the proceedings excluding costs for the hearing on 4 October 2019 … [Note: Order 2 suspended for 14 days from 8 November 2019 for further submissions by the parties on the issue of costs]. 1. In accordance with the invitation reserved to the parties in the proposed order the Council sought to make submissions on the issue of costs, and accordingly, the proposed order was not entered. The Council contends that the usual order (either at all or in the proposed form) should not be made and that due to the circumstances of this case an order should be made that each party pays its own costs. The Applicant contends that the proposed order as originally formulated is the appropriate order in these proceedings.