Wyong Shire Council v MCC Energy (No 2)

THE COURT : In this matter judgment was delivered on 29 March 2005 when the following orders were made: (1) Appeal allowed in part. (2) Order 2 of the Orders made by the Land and Environment Court on 18 February 2004 is stayed until further order of that Court to enable the determination of development application DA 1370/02 either by the Appellant having regard to the judgment of this Court or by the Land and Environment Court on appeal to it pursuant to s 97 of the Environmental Planning & Assessment Act 1979 in respect of that development application. (3) Reserve liberty to apply to the Land and Environment Court on seven days notice by any of the parties in respect of Order 2. (4) That each party pay its own costs of the appeal.

The basis of Order 4 above is set out in [106] and [107] of the original judgment. As both the Council and MCC were partially successful on the appeal, it was considered appropriate that each party should pay its own costs thereof.

On 10 May 2005 MCC filed a Notice of Motion seeking that it be granted a certificate pursuant to s 6 of the Suitor's Fund Act 1951 (the Act). The other parties to the appeal do not oppose that motion. Further, the parties have consented to the motion being determined by ourselves given that Sheller JA, the other member of the Court, has retired.

The granting of a certificate under s 6 is predicated upon an appeal to this Court succeeding when, on application, the Court is empowered to grant to the respondent to the appeal an indemnity certificate in respect thereof. In the present case, MCC was the respondent to the appeal and the appellant, the Council, was partially successful. Consequently the appeal was allowed in part. In our opinion, that is sufficient to enliven the power of the Court to grant a certificate.

Although MCC as respondent has not been ordered to pay the Council's costs of the appeal, nonetheless, if an indemnity certificate is granted, that certificate will entitle MCC to be paid from the Fund 50% of the costs of the appeal incurred by it: see s 6(2)(b). In our opinion, it is appropriate that such a certificate be granted.

Accordingly, the Court orders that the first respondent be granted a certificate under s 6 of the Suitor's Fund Act 1951 if otherwise qualified.