Vigor Master Pty Limited v Warringah Council [2006] NSWLEC 140

Vigor Master Pty Limited v Warringah Council [2006] NSWLEC 140

It was not fair or reasonable to order costs against the applicant in relation to the conduct of the main hearing, the notice of motion for preliminary questions, or the court appointed expert's fees, as the applicant's conduct was not so unreasonable as to justify a costs order. However, it was fair and reasonable to order the applicant to pay the Council's costs incurred as a result of an unnecessary additional hearing day on 3 February 2005, which resulted solely from the applicant raising new legal submissions after judgment was reserved. The Council was also entitled to part of its costs of the costs motion, proportionate to its success.

Parties
Applicant: Vigor Master Pty Limited; Respondent: Warringah Council
Jurisdiction
Australia
Judgment Date
29 March 2006
Procedural Posture
Planning Appeal / Application for Costs Order Following Merits Appeal; Consideration of Chief Judge's Concurrence With Commissioner's Proposed Costs Order
Outcome
Partial concurrence with the proposed costs order; costs order in limited respect only.
Legal Topics
Costs in Merit Appeals, Environmental Planning Instruments, Discretion to Award Costs, Land and Environment Court Procedures
Planning and Environment Law Administrative Law Costs in Merit Appeals Environmental Planning Instruments Discretion to Award Costs Land and Environment Court Procedures

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Parties

Vigor Master Pty Limited

Applicant

Warringah Council

Respondent

Procedural Posture

Planning Appeal / Application for Costs Order Following Merits Appeal; Consideration of Chief Judge's Concurrence With Commissioner's Proposed Costs Order

Legal Issues

  1. 1 Whether it is fair and reasonable to make an order for costs in a Class 1 planning appeal under s 97 Environmental Planning and Assessment Act 1979;
  2. 2 Whether the Chief Judge should concur with the Commissioner's proposed costs order under s 69(8) of the Land and Environment Court Act 1979;
  3. 3 Whether the applicant's conduct was unreasonable such as to justify a costs order

Ratio Decidendi

It was not fair or reasonable to order costs against the applicant in relation to the conduct of the main hearing, the notice of motion for preliminary questions, or the court appointed expert's fees, as the applicant's conduct was not so unreasonable as to justify a costs order. However, it was fair and reasonable to order the applicant to pay the Council's costs incurred as a result of an unnecessary additional hearing day on 3 February 2005, which resulted solely from the applicant raising new legal submissions after judgment was reserved. The Council was also entitled to part of its costs of the costs motion, proportionate to its success.

Court Disposition

Partial concurrence with the proposed costs order; costs order in limited respect only.

Orders

  • Applicant to pay respondent's (Council's) costs in the amount of $1,828 for the unnecessary additional hearing on 3 February 2005.
  • Applicant to pay respondent's (Council's) costs of the costs motion in the amount of $1,250.