Lake Macquarie City Council v Newcastle Resources Pty Ltd (formerly known as SCE Resources Pty Ltd t/as Steelstone) (No 3)

The background to this matter is set out in my judgment of 11 December 2024. [1] I shall use the same abbreviations here.

On 25 October 2024, I ordered that the Council pay Newcastle’s costs thrown away by reason of the vacation of the 25 November 2024 hearing.

On 28 November 2024, I ordered that those costs be payable on the making of the gross sum costs order under s 98(4) of the Civil Procedure Act 2005 (NSW).

I have now received detailed and careful submissions as to that question from both parties.

Newcastle contends that the relevant amount is $141,264.38 being, it contends, a reasonable estimate of its costs thrown away discounted by 20%.

I have received from the Council a detailed and careful analysis of Newcastle’s claim.

As the Council points out, a significant portion of the costs claimed by Newcastle as being thrown away relate to an “evidence review” and “general matter preparation”.

I think the Council is correct to submit that not all of those costs can truly be said to be thrown away.

The Council argues for a discount of 30%, rather than 20%, and submits that the appropriate figure that should be ordered as costs thrown away is $87,000.

A necessarily broad brush approach must be taken to this question. The parties may be assured that I have given careful consideration to their detailed submissions. My conclusion is that the appropriate figure to fix as costs thrown away is $100,000.

My intention was that that figure be paid forthwith upon determination.

I order that Lake Macquarie City Council pay the costs thrown away by Newcastle Resources Pty Ltd by reason of the vacation of the hearing date.

I fix those costs pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) at $100,000.

I order that the Council pay those costs by 5pm on 31 January 2025.