Application for costs occasioned by adjournment –
originating application seeking declaration that development
approval had not lapsed – the respondent, now seeking
costs, unsuccessfully resisted – principal application
adjourned when the non-party landowner intervened, seeking an
adjournment to consider its position – respondent blamed
applicant for failing to join owner – whether discretion
to award costs arose – whether discretion should be
exercised – s. 457(2) Sustainable Planning Act
– rr. 3, 4 and 8 Planning and Environment Court Rules
2010 – rr. 5, 62 and 489 Uniform Civil Procedure
Facts: The Respondent (Cavill)
applied for an order that the Applicant (DTMR) pay
Cavill's costs thrown away by an adjournment.
The primary proceeding brought by DTMR sought a
declaration that a development approval had not lapsed, thus having
the effect of deferring DTMR's obligation to pay compensation
for a land resumption. Before the conclusion of the hearing in the
primary proceeding, a lawyer for Sunrise Waters (the new owner of
the land which took the benefit of the development approval)
intervened and asked that no decision be made until Sunrise Waters
had an opportunity to consider its position and be heard.
An adjournment was granted. Sunrise Waters subsequently filed an
application seeking its joinder as a Respondent. That application
was returnable on the adjourned date for the primary proceeding.
Joinder was ordered and Cavill's costs of the day were
Cavill now sought its costs thrown away by the adjournment, on
the grounds that DTMR failed to join a relevant party to the
primary proceeding, namely Sunrise Waters as owner of the land.
Cavill relied on section 457(2) of the Sustainable Planning Act
2009 (SPA), particularly the following
"(d) a party has incurred costs because the party is
required to apply for an adjournment because of the conduct of
(f) a party has incurred costs because another party has defaulted
in the Court's procedural requirements;
(i) an applicant ... does not properly discharge its
responsibilities in the proceeding."
Cavill also relied upon rule 8(1) of the Planning &
Environment Court Rules 2010 (PEC Rules) which
requires an originating application to name as a Respondent
"the entity directly affected by the relief sought", and
rule 62(1) of the Uniform Civil Procedure Rules 1999
(UCPR) which states that "[e]ach person whose
presence is necessary to enable the court to adjudicate effectually
and completely on all matters in dispute in a proceeding must be
included as a party to the proceeding".
Decision: The Court held that:
Section 457(2)(d) of the SPA was not available because it only
applies in favour of "the party" required to apply for an
A failure to comply with rule 8(1) of the PEC Rules had not
been demonstrated. That rule is concerned with identifying a proper
contradictor with an interest in resisting the relief sought. No
estoppel would arise from dismissal of an application for a
The requirements in rule 8(1) of the PEC Rules and rule 62(1)
of the UCPR do not give rise to a procedural requirement. Section
457(2)(f) of the SPA had not been triggered.
However, it is an applicant's responsibility in commencing
a proceeding to ascertain and give notice to, if not join as a
party, the owner of the relevant land. On that basis, section
457(2)(i) of the SPA was triggered because DTMR did not properly
discharge its responsibilities in the proceeding.
Despite that, the Court was not persuaded to exercise its
discretion to award costs against DTMR, for the following reasons:
The originating application was successful, and it could be
said that Cavill ought not to have opposed it;
Cavill was as willing as DTMR to proceed in the absence of
Cavill incorrectly identified itself as the owner of the land
(a situation that had been overtaken by events) until a very late
stage in the proceeding;
Cavill did not oppose the adjournment sought by Sunrise Waters;
Cavill belatedly acknowledged Sunrise Waters' entitlement
to be heard.
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