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[2006] NSWSC 885

Koompahtoo Local Aboriginal Land Council v KLALC Property and Investment Pty Ltd & Anor (No 2)

No order as to costs in either cross-claims.

Catchwords

PROCEDURE - Costs - Rival cross-claims dependent upon success of a third party's cross-claim - Third party's cross-claim unsuccessful - Rival cross-claims therefore dismissed - Appropriate order for costs between rival cross-claimants

Cases cited

  • Australian Conservation Foundation v Forestry Commission(1988) 81 ALR 166

Judgment

  1. [1]

    A cross-claim was filed by Koompahtoo Local Aboriginal Land Council against Paramount Land Pty Ltd in consequence of a cross-claim brought against it by LKM Capital Ltd. In consequence of the Council's cross-claim, Paramount brought a cross-claim against the Council. In my reasons for judgment of 28 August 2006, I found that LKM was not entitled to any monetary judgment against the Council.

  2. [2]

    The consequence was that both the Council's cross-claim against Paramount and Paramount's cross-claim against the Council fell away. I made an order that the third cross-claim by Paramount be dismissed, and I propose to make an order, that is not opposed, that the second cross-claim by the Council against Paramount be dismissed.

  3. [3]

    The question as to costs then arises. The Council submits that since both parties have failed with respect to their cross-claims, there should be no order as to costs. Paramount claims that the Council should pay its costs, including the costs of the cross-claim filed by it and, as a form of Bullock order, that the Council's liability to Paramount for costs should include any liability that Paramount has to LKM for costs.

  4. [4]

    The proceedings between Paramount and LKM were finalised by a judgment against Paramount. Paramount did not appear at the trial of the proceedings in which I gave my reasons for judgment. It was pointed out, however, that that factor ought not to be used to penalise Paramount by refusing an order for costs ( Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 169-170).

  5. [5]

    In my view, the cross-claims in question fell away, as I have said, as a result of the failure of LKM to establish an entitlement to a monetary judgment against the Council.

  6. [6]

    It seems to me that the entitlements to orders for costs on both sides are equally poised, and in those circumstances, in the exercise of my discretion, I think it appropriate that there be no order as to costs.

  7. [7]

    I make orders in terms of the short minutes of orders regarding Paramount, initialled by me, dated by me and placed with the papers.

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.