CWO Pty Ltd v Muswellbrook Shire Council (No 2) [2024] NSWLEC 115

CWO Pty Ltd v Muswellbrook Shire Council (No 2) [2024] NSWLEC 115

It was not fair and reasonable to order costs against the Commonwealth for the main proceedings, as its conduct was not found to be unreasonable nor its claims lacking in prospects; however, the Commonwealth acted unreasonably in the breadth and timing of its suppression order motion, justifying an order for it to pay the applicant's costs incurred in relation to that motion.

Parties
Applicant, Applicant on the Motion: CWO Pty Ltd; First Respondent, No Appearance on the Motion: Muswellbrook Shire Council; Second Respondent, Respondent on the Motion: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
01 November 2024
Procedural Posture
Class 1 Appeal / Costs Application Following Primary Judgment
Outcome
Order for costs granted in part: Applicant awarded costs of the suppression motion; otherwise, no order as to costs and each party to bear its own costs on the current motion.
Legal Topics
Costs in Planning Appeals, Suppression and Non Publication Orders, Reasonableness in Conduct of Proceedings
Planning Law Administrative Law Civil Procedure Costs in Planning Appeals Suppression and Non Publication Orders Reasonableness in Conduct of Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

CWO Pty Ltd

Applicant, Applicant on the Motion

Muswellbrook Shire Council

First Respondent, No Appearance on the Motion

Commonwealth of Australia

Second Respondent, Respondent on the Motion

Procedural Posture

Class 1 Appeal / Costs Application Following Primary Judgment

Legal Issues

  1. 1 Whether applicant is entitled to costs against the Commonwealth of Australia for substantive proceedings and suppression motion
  2. 2 Whether the Commonwealth acted unreasonably within r 3.7 Land and Environment Court Rules 2007 (NSW)
  3. 3 Whether it is fair and reasonable to depart from the usual no-costs rule in Class 1 proceedings

Ratio Decidendi

It was not fair and reasonable to order costs against the Commonwealth for the main proceedings, as its conduct was not found to be unreasonable nor its claims lacking in prospects; however, the Commonwealth acted unreasonably in the breadth and timing of its suppression order motion, justifying an order for it to pay the applicant's costs incurred in relation to that motion.

Court Disposition

Order for costs granted in part: Applicant awarded costs of the suppression motion; otherwise, no order as to costs and each party to bear its own costs on the current motion.

Orders

  • Order 1 of the Applicant's Notice of Motion dated 19 July 2024 is dismissed.
  • Order 2 of the Applicant's Notice of Motion dated 19 July 2024 is upheld (costs of suppression motion payable by the Commonwealth).