Marshall Rural Pty Limited v Hawkesbury City Council [2016] NSWLEC 127

Marshall Rural Pty Limited v Hawkesbury City Council [2016] NSWLEC 127

Marshall Rural was not entitled to indemnity costs because its offer required the Basscave interests to abandon their development consents within the period for acceptance and was not a genuine compromise. Although Marshall Rural succeeded on significant grounds in the substantive proceedings, it failed on other pleaded issues, had been unsuccessful in the expedition application, and Basscave had existing costs entitlements. Balancing the parties' wins and losses and the interest in ending the proceedings, the appropriate order was to set aside the earlier Basscave costs order, make the agreed costs order between the Council and Marshall Rural, and award Marshall Rural 50% of its costs in...

Jurisdiction
Australia
Judgment Date
12 September 2016
Procedural Posture
Class 4 Costs Application / Costs Determination After Substantive Decision
Outcome
Costs apportioned; indemnity costs refused; earlier Basscave costs order to be set aside; short minutes to be provided.
Legal Topics
['apportionment of Costs' 'indemnity Costs' 'costs Following the Event' 'development Consents' "owner's Consent" 'hawkesbury Local Environmental Plan 2012 Cl 2.8(3)(b)']
['costs' 'environmental Planning and Development'] ['apportionment of Costs' 'indemnity Costs' 'costs Following the Event' 'development Consents' "owner's Consent" 'hawkesbury Local Environmental Plan 2012 Cl 2.8(3)(b)']

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Procedural Posture

Class 4 Costs Application / Costs Determination After Substantive Decision

Legal Issues

  1. 1 ['Whether Marshall Rural should receive an indemnity costs order following an offer to terminate the proceedings.' 'Whether the Court should depart from the general presumption that costs follow the event.' "How costs should be apportioned between Marshall Rural, the Council, and the Basscave interests given Marshall Rural's partial success and failures on other issues." "Whether earlier costs entitlements, including Basscave's costs of the failed expedition application and costs thrown away, should affect the final costs orders."]

Ratio Decidendi

Marshall Rural was not entitled to indemnity costs because its offer required the Basscave interests to abandon their development consents within the period for acceptance and was not a genuine compromise. Although Marshall Rural succeeded on significant grounds in the substantive proceedings, it failed on other pleaded issues, had been unsuccessful in the expedition application, and Basscave had existing costs entitlements. Balancing the parties' wins and losses and the interest in ending the proceedings, the appropriate order was to set aside the earlier Basscave costs order, make the agreed costs order between the Council and Marshall Rural, and award Marshall Rural 50% of its costs in...

Court Disposition

Costs apportioned; indemnity costs refused; earlier Basscave costs order to be set aside; short minutes to be provided.

Orders

  • ['The earlier costs order made in favour of Basscave is to be set aside.' 'There should be a costs order between the Council and Marshall Rural in the terms agreed between them in Matter 154005 of 2016.' 'Marshall Rural is entitled to 50% of its costs in both matters beyond the amount agreed to accrue to Marshall...