Key Takeaways
- A Respondent’s filing of an appearance “save as to costs” allowed for a derogation from the general costs rule in rule 42.1 of the Uniform Civil Procedure Rules 2005 (‘UCPR’).
- The Applicant did not act in any way to disentitle them from an order for costs.
- The Respondent was unsuccessful and was ordered to pay the costs of the Applicant.
Background
These proceedings concerned the issue of costs arising out of Reulie Land Co Pty Limited v Lee Environmental Planning Pty Limited and Ors [2019] NSWLEC 194 (Reulie No 1).
Reulie No 1 concerned the validity of a development consent granted by Wingecarribee Shire Council (the Third Respondent) (‘Council’) to Lee Environmental Planning Pty Ltd (First respondent) (‘Lee’) on the a site owned by Lasovase (Second Respondent) (‘Lasovase’).
You can read more about Reulie No 1 here: Reulie Land Co Pty Limited v Lee Environmental Planning Pty Limited and Ors [2019] NSWLEC 194
Issues
In the primary judgment, the Applicant (Reulie) was successful, and sought an order that the Respondent’s pay its costs.
The First and Second Respondents sought an order in these proceedings that the Council pay the entirety of the Applicant’s costs. The Respondents accepted that the Applicant was entitled to the costs of the proceedings, but disagreed with the Third Respondent on the apportionment of liability as to paying costs.
Prior to the commencement of Reulie No 1, the Applicant had made three offers to the Respondents, the last of which was with respect to costs. None of the offers were fully accepted by the Respondents.
The Council had made two offers, the first offering a sum in exchange for the Applicant’s discontinuance of proceedings, and the second regarding the apportionment of costs between the three Respondents. Those offers were also not accepted.
Judgment
The Court held that:
- The Respondents’ submission of an appearance did not protect them from liability in a costs order, interpreting the general rule (rule 42.1 of the UCPR) as not operating as a blanket protection against costs.
- Without an agreement, the Applicant had no alternative but to continue with proceedings. The Applicant did not act in way that disentitled them from a costs order.
- Whilst the First and Second Respondents relied on the Council to perform its function lawfully, including some of the decisions that were wholly in control of the Council, the Court did not accept that the First and Second Respondents had zero contribution to any of Council’s errors.
- Contributions to conduct were identified in the actions of all Respondents. Without evidence delineating proportionate fault, it was inappropriate for the Court to designate fault on individual Respondents.
Outcome
Each Respondent was unsuccessful in their applications to depart from the general rule in r42.1 UCPR. The Respondents were ordered to pay for the Applicant’s costs of the proceedings and the costs application; and to pay for their own costs of the proceedings and costs application.
The full judgement can be found at the following link: Reulie Land Co Pty Limited v Lee Environmental Planning Pty Limited and Ors (No 2) [2020] NSWLEC 49
Disclaimer: Beatty Hughes & Associates acted for the Applicant in these proceedings.