Lithgow City Council v Newera Defendo Pty Ltd [2020] NSWLEC 34

Lithgow City Council v Newera Defendo Pty Ltd [2020] NSWLEC 34

The application for indemnity costs was refused because, despite the Company ultimately succeeding, its success did not flow solely from the case it initially advanced. The Council’s initiation and prosecution of the proceedings, while mistaken, were not such as to warrant indemnity costs on the grounds of hopelessness, abuse of process, or unreasonable conduct. The ordinary rule that costs follow the event was not displaced. Restrictions on affidavit use in the costs application were ordered as such evidence was untested in the substantive hearing.

Parties
Applicant: Lithgow City Council; First Respondent: Newera Defendo Pty Ltd
Jurisdiction
Australia
Judgment Date
24 April 2020
Procedural Posture
Costs Application in Class 4 Land & Environment Court Proceedings / Post Substantive Judgment; Determination of Costs Application
Outcome
Application for indemnity costs refused; ordinary costs orders made
Legal Topics
Costs, Indemnity Costs, Affidavit Evidence, Environmental Planning Instruments
Civil Procedure Environmental Law Costs Indemnity Costs Affidavit Evidence Environmental Planning Instruments

Case Brief

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Parties

Lithgow City Council

Applicant

Newera Defendo Pty Ltd

First Respondent

Procedural Posture

Costs Application in Class 4 Land & Environment Court Proceedings / Post Substantive Judgment; Determination of Costs Application

Legal Issues

  1. 1 Whether the Applicant should pay the First Respondent's costs on an indemnity basis under s 98 of the Civil Procedure Act 2005 and r 42.1 of the Uniform Civil Procedure Rules 2005
  2. 2 Appropriateness of restrictions on the use of affidavit evidence under s 136 of the Evidence Act 1995

Ratio Decidendi

The application for indemnity costs was refused because, despite the Company ultimately succeeding, its success did not flow solely from the case it initially advanced. The Council’s initiation and prosecution of the proceedings, while mistaken, were not such as to warrant indemnity costs on the grounds of hopelessness, abuse of process, or unreasonable conduct. The ordinary rule that costs follow the event was not displaced. Restrictions on affidavit use in the costs application were ordered as such evidence was untested in the substantive hearing.

Court Disposition

Application for indemnity costs refused; ordinary costs orders made

Orders

  • The application that the Applicant pay the First Respondent's costs on the indemnity basis is refused.
  • The First Respondent is to pay the Applicant's costs of the costs application as agreed or assessed.