Walfertan Processors Pty Limited v Upper Hunter Shire Council & Ors (No 5) [2010] NSWLEC 109

Walfertan Processors Pty Limited v Upper Hunter Shire Council & Ors (No 5) [2010] NSWLEC 109

Considering the circumstances of the litigation as a whole, it was not fair and reasonable to depart from the usual Class 1 costs position. The Second Respondents chose to seek late joinder and participate fully in an extensive merits appeal process; before joinder the Council's and Applicant's experts had substantially resolved the Council's issues; the later expert conferencing and refinement of the proposal occurred largely because of the Second Respondents' late involvement; and the Second Respondents were unsuccessful on the remaining issues they pressed. Conversely, although the Second Respondents' involvement caused substantial additional work, it contributed to a process that...

Jurisdiction
Australia
Judgment Date
31 August 2010
Procedural Posture
Class 1 Proceedings Costs Application / Costs Motions After Conditional Development Consent Was Granted
Outcome
Both the Applicant's and the Second Respondents' costs motions were dismissed; the Applicant and Second Respondents were each ordered to pay their own costs of the costs proceedings.
Legal Topics
['costs in Class 1 Proceedings' 'development Application Appeal' 'joinder of Parties' 'expert Evidence and Conferencing' 'whether Parties Acted Unreasonably' 'whether Information Necessary for Proper Consideration of a Development Application Was Provided']
['costs' 'planning and Environment' 'civil Procedure'] ['costs in Class 1 Proceedings' 'development Application Appeal' 'joinder of Parties' 'expert Evidence and Conferencing' 'whether Parties Acted Unreasonably' 'whether Information Necessary for Proper Consideration of a Development Application Was Provided']

Case Brief

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Procedural Posture

Class 1 Proceedings Costs Application / Costs Motions After Conditional Development Consent Was Granted

Legal Issues

  1. 1 ["Whether it was fair and reasonable under Land and Environment Court Rules 2007 r 3.7 to order the Applicant to pay the Second Respondents' costs of the Class 1 proceedings." 'Whether the Applicant failed to provide, or unreasonably delayed in providing, information or documents necessary to enable proper understanding and consideration of the development application.' 'Whether the Applicant commenced proceedings without reasonable prospects of success because the proposal as initially before the Court was said to be incapable of approval.' "Whether it was fair and reasonable to order the Second Respondents to pay the Applicant's costs because of alleged unreasonable conduct, improper purpose, or unsuccessful pursuit of issues including designated development and sufficiency of information."]

Ratio Decidendi

Considering the circumstances of the litigation as a whole, it was not fair and reasonable to depart from the usual Class 1 costs position. The Second Respondents chose to seek late joinder and participate fully in an extensive merits appeal process; before joinder the Council's and Applicant's experts had substantially resolved the Council's issues; the later expert conferencing and refinement of the proposal occurred largely because of the Second Respondents' late involvement; and the Second Respondents were unsuccessful on the remaining issues they pressed. Conversely, although the Second Respondents' involvement caused substantial additional work, it contributed to a process that...

Court Disposition

Both the Applicant's and the Second Respondents' costs motions were dismissed; the Applicant and Second Respondents were each ordered to pay their own costs of the costs proceedings.

Orders

  • ["The Applicant's Notice of Motion dated 25 September 2009 seeking costs of the Class 1 proceedings is dismissed." "The Second Respondents' Notice of Motion dated 28 August 2009 seeking costs of the Class 1 proceedings is dismissed." 'The Applicant and Second Respondents are each to pay their own costs of these...