Central Coast Council v Pastoral Investment Land & Loan Pty Ltd (No 2)

On 19 June 2020 judgment was delivered in these proceedings between the plaintiff/cross-defendant (“the Council”) and the defendant/cross-claimant (“PILL”) (see Central Coast Council v Pastoral Investment Land & Loan Pty Ltd [2020] NSWSC 777).

At [81] of the earlier judgment it was concluded:

PILL indicated that a different costs order was sought and, as envisaged, the parties have provided written submissions. Neither party suggested that an oral hearing was necessary, so the question of costs will be dealt with on the papers.

The Council does not seek any departure from the order foreshadowed by the Court. However, PILL seeks costs orders to the effect that the Council pay its costs of the proceedings from 19 February 2020 on an indemnity basis, or alternatively on the ordinary basis. In brief, PILL contends that the Council should bear those costs because all of the costs incurred after 19 February 2020 were the result of the Council being granted a late indulgence to amend its claim (which ultimately failed) to raise new arguments based on certain alleged implied terms. It was submitted that all costs incurred after 19 February 2020 were wasted.

It may be accepted that, absent the amendment application made on 19 February 2020 in the course of closing submissions, the hearing would have concluded on that, the third, day. As it happened, a further hearing day was required on 3 June 2020, and a directions hearing was earlier required on 9 April 2020. It may also be accepted that, as submitted by PILL, its Cross-Claim was “not further litigated after 19 February 2020”. That is to say, the further hearing after that date was concerned with the claims of the Council, upon which it failed.

Nevertheless, it remains the position, in my view, that the time taken at the hearing overall was divided roughly equally between the Council’s claims and PILL’s claims. I do not accept the submission of PILL that this is only true in respect of the period up to 19 February 2020. It cannot be overlooked that PILL’s Cross-Claim, as pleaded, raised a great many claims, many of which were abandoned or no longer pressed during the course of the hearing. I note further that a substantial part of the second day of the hearing was lost due to the unavailability of PILL’s leading counsel. Moreover, it does not follow, from the fact that costs incurred after 19 February 2020 concerned claims which failed, that those costs were wasted.

It is also relevant to note that PILL has the benefit of orders made on 19 February 2020 and 14 May 2020 that the Council pay its costs of and occasioned by (or thrown away by reason of and/or incidental to) amendments made to the Council’s Statement of Claim. To some extent therefore, PILL’s costs from 19 February 2020 are already recoverable from the Council. That is of course a matter for assessment unless the parties can reach an agreement.

Finally, it is my view that whilst the Council’s amendment applications were made at a very late stage, I do not regard the conduct of the Council in relation to the amendments, or its conduct of the proceedings more generally, to be unreasonable or delinquent in such a manner as may warrant an order for indemnity costs.

In all the circumstances, it is preferable, in my opinion, to maintain a broad approach that views the proceedings as a whole, rather than as a number of segments. When that is done, it seems to me that the appropriate exercise of the Court’s discretion as to costs under s 98 of the Civil Procedure Act 2005 (NSW) is to order that (aside from existing costs orders), each party bear its own costs of the proceedings. Each party was in essence equally successful, or unsuccessful, depending upon one’s point of view. It would of course be open to the Court to instead order that the Council pay the costs of its claim, and PILL pay the costs of its Cross-Claim. However, an order in those terms would invite arguments as to what parts of the costs incurred are properly attributable to the Council’s claim and what parts are properly attributable to PILL’s Cross-Claim.

For the above reasons, the Court will order that, aside from existing costs orders, each party bear its own costs of the proceedings.