Fulton Hogan Pty Ltd v Blacktown City Council [2020] NSWLEC 169

Fulton Hogan Pty Ltd v Blacktown City Council [2020] NSWLEC 169

As significant matters in the substantive proceedings included both merit and legal issues (with new merit objections pleaded by the Council), it is not possible or appropriate (consistent with authority) to conduct a hypothetical assessment of the likely outcome or declare the proceedings 'doomed to fail'. The circumstances do not justify departing from the 'no discouragement' principle. No general or limited costs order in favour of the Council is fair or reasonable on the evidence and pleadings. The Council's costs application is dismissed; the Council is to pay the Applicant's costs of the costs application, with a limited deduction for unnecessary copying.

Jurisdiction
Australia
Judgment Date
03 December 2020
Procedural Posture
Class 1 Appeal (merit Appeal); Costs Application / Costs Decision Following Discontinuance
Outcome
Council's costs application dismissed. Applicant awarded costs of the costs application (with limited exclusion for some copying costs).
Legal Topics
['costs—discontinuance' 'planning Appeals—modification of Consent' 'jurisdiction and Powers of Land and Environment Court' 'merit Vs Legal Issues in Planning Appeals']
['administrative Law' 'planning and Environment Law' 'civil Procedure'] ['costs—discontinuance' 'planning Appeals—modification of Consent' 'jurisdiction and Powers of Land and Environment Court' 'merit Vs Legal Issues in Planning Appeals']

Case Brief

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Procedural Posture

Class 1 Appeal (merit Appeal); Costs Application / Costs Decision Following Discontinuance

Legal Issues

  1. 1 ["Whether it is 'fair and reasonable' under r 3.7 of the Land and Environment Court Rules 2007 to order the discontinuing party (Fulton Hogan) to pay the Council's costs for the proceedings or in part;" "Whether the Applicant's appeal was 'doomed to fail' such that a costs order is justified;" "Whether the Council's legal issues were so central as to warrant a departure from the 'no discouragement' principle;" "Whether the discontinuance by the Applicant was an 'effective surrender' justifying a costs order;" 'Whether any alternative or partial costs orders should be made;']

Ratio Decidendi

As significant matters in the substantive proceedings included both merit and legal issues (with new merit objections pleaded by the Council), it is not possible or appropriate (consistent with authority) to conduct a hypothetical assessment of the likely outcome or declare the proceedings 'doomed to fail'. The circumstances do not justify departing from the 'no discouragement' principle. No general or limited costs order in favour of the Council is fair or reasonable on the evidence and pleadings. The Council's costs application is dismissed; the Council is to pay the Applicant's costs of the costs application, with a limited deduction for unnecessary copying.

Court Disposition

Council's costs application dismissed. Applicant awarded costs of the costs application (with limited exclusion for some copying costs).

Orders

  • ["The Respondent's application that the Applicant pay the Respondent's costs of the Class 1 proceedings is dismissed." "The Respondent is to pay the Applicant's costs of these costs' proceedings, except that only 75% of the copying costs of the exhibit to the affidavit of Breellen Warry dated 2 October 2020 are...