Hawkins v Permarig Pty Ltd[2004] QCA 76

SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I have had the benefit of reading the reasons for judgment of White J in which the relevant facts and issues are set out.  I will only repeat those necessary for explaining my own reasons for reaching a different conclusion.

2. The appellants contracted to purchase land from the first respondent. The second respondent ("the Council") had earlier approved the first respondent's application to subdivide that land, subject to conditions. The Council sealed the survey plans relevant to the subdivision and the appellants contend that, in reliance on that early sealing, they completed the contract for the purchase of the land. The appellants claim that the first respondent failed to comply with the Council's conditions of approval of subdivision of the land and as a result they were required to seek remedies under the Integrated Planning Act 1997 (Qld) ("the Act") in the Planning and Environment Court, which had exclusive jurisdiction.^[1]  The appellants successfully obtained declarations under the Act that the first respondent had breached the Council's conditions approving the application to subdivide the land and also established that the first respondent committed offences under the Act.  Additionally, the appellants obtained an order requiring the first respondent to remedy its offences and to comply with the Planning and Environment Court's lengthy directions contained in its order of 30 March 2001.  At the hearing of the matter in the Planning and Environment Court, the Council called evidence and resisted the making of those orders.  Section 4.1.23 of the Act ordinarily requires each party to bear its own costs, the appellants did not ask for costs and no order as to costs was made.

3. The appellants then brought a claim in the Supreme Court of Queensland against the first respondent for breach of contract and against the second respondent for breach of duty, including a claim for the costs associated with the proceedings in the Planning and Environment Court of $161,729.81. The question for determination is whether the learned primary judge was right to strike out that part of the appellants' claim.

4. Accepting for the purposes of this appeal that the appellants are able to establish the facts necessary to prove their claim brought against each respondent, the costs expended by the appellants in enforcing their rights in the Planning and Environment Court would appear to be, at least arguably, an expense arising from the respondents' breaches and, as such, claimable as damages unless precluded by the principles set out by the High Court in Anderson v Bowles.^[2]

5. In that case, Bowles let premises to Anderson on a weekly tenancy. Anderson sublet portions of the premises to others, including James, without Bowles' knowledge or approval. Bowles gave Anderson notice to quit and took proceedings under the National Security (Landlord and Tenant) Regulations (SR 1945 No 97-SR 1948 No 108) ("the Regulations") and obtained an order that a warrant of possession be issued to regain Bowles' possession of the premises.  Anderson applied for and obtained a rescission of the order for possession.  Bowles successfully appealed that order and ultimately took possession of the premises.  She then commenced an action in the Supreme Court of Queensland against Anderson for damages for the loss of mesne profits and/or rental of the premises and for the expense incurred by way of costs of the legal proceedings in the course of efforts to recover possession of the premises.  Regulation 75 of the Regulations, which was in the same terms as  s 62 of the Landlord and Tenant Act 1948 (Qld), provided that:

"No costs shall be allowed in any proceedings in relation to which this Part applies, not being proceedings in respect of an offence arising under this Part."

That section was contained in Part III of the Landlord and Tenant Act 1948 (Qld) and concerned recovery of possession, not damages of the type sought by Bowles in her Supreme Court action.

Dixon, Williams, Fullagar and Kitto JJ stated that s 62:

"… is a legislative declaration that the parties to proceedings for the recovery of possession or proceedings arising thereout shall not be liable to one another for the costs of those proceedings.  In the face of this legislative declaration can costs be properly included in the damages or mesne profits?  It is a general rule that where it is sought to include costs incurred in other proceedings in the damages arising upon a cause of action, costs shall not be included, if as a matter of judicial determination or by a positive rule of law they are treated as costs which should be borne by the party suing.  Accordingly it is not possible to recover as part of such damages the difference between party and party costs awarded to the plaintiff in the original litigation and the costs as between solicitor and client which he has incurred: Barnett v Eccles Corporation.  Further, if costs are expressly withheld by the court in the original proceeding none can be recovered in the action for damages brought by the plaintiff from whom they were so withheld: Loton v Devereux, where Lord Tenterden CJ said: 'In such a case the Court have jurisdiction to say definitely whether there shall or shall not be costs.'  In Malden v Fyson, Lord Denman CJ said: 'And this principle was admitted, in general to apply; so that, if any costs were awarded, nothing beyond the sum taxed according to the rules of the Court could be recovered as damages; or, if costs were expressly withheld by an adjudication in the particular case, none would be recoverable by suit in any other Courts.'  See, further, Pritchet v Boevey.

The legislature having determined that costs shall not be recoverable in proceedings of the character now in question, it would be contrary to the principles which these cases exemplify if they were included in the damages and thus were made recoverable by a side wind.  The case is not like Nowell v Roake depending upon a rule of the common law which simply ignored costs of legal proceedings of the character in question.  It is one where the legislature, having considered whether in such proceedings costs should or should not be awarded, has expressed its conclusion in a definite provision.  This should stand on the same footing as a judicial pronouncement upon the same question and as the rule that the difference between party and party costs judicially awarded and costs as between solicitor and client are not recoverable.  For these reasons the costs of the proceedings should be excluded from the calculation of the damages."^[3]

6. Here, s 4.1.23 of the Act provided:

"Costs

(1)  Each party to a proceeding in the court must bear the party's own costs for the proceeding."

Section 4.1.23(2) sets out nine limited circumstances in which the court has a discretion to order costs.  It is common ground that this case did not fall within those circumstances.

7. The Act replaced the Local Government (Planning and Environment) Act 1990 (Qld), s 7.6 of which was in generally comparable terms to s 4.1.23, sub-section (1) providing :

"Subject to subsection (1A), each of the parties to an appeal or other proceedings is to bear their own costs."

The court was given limited discretion to order costs in the circumstances set out in s 7.6(1A), broadly comparable to s. 4.1.23(2) of the Act. 

8. The introduction of s 7.6 of that Act altered the pre-existing position where the court had a wide discretionary power to order costs as to any proceedings before it.^[4]

9. In Mudie v Gainriver Pty Ltd (No 2),^[5] this Court observed that it was likely that one purpose of s 7.6(1) Local Government (Planning and Environment) Act 1990 (Qld), the predecessor of s 4.1.23 of the Act, is to ensure that citizens are not discouraged from appealing or applying to the Planning and Environment Court because of fear that a crippling costs order might be made against them and also recognises the public interest character of some applications to the Planning and Environment Court.^[6]

10. It is not the case that the effect of s 4.1.23 of the Act is simply to revert to the common law position where, in the absence of enabling legislation, a court had no power to order costs and where, as a result, these costs could later be recovered in an action for damages.^[7]  The legislature here has deliberately determined to prohibit costs orders in proceedings in the Planning and Environment Court unless the matter is within the limited categories set out in s 4.1.23(2) of the Act.

11. It seems sensible that if the appellants suffered the economic loss of the costs of bringing the application in the Planning and Environment Court because of the respondents' breaches of contract or duty, they should be compensated by those responsible. My difficulty in adopting that apparently sensible position is that I cannot see any rational relevant distinction between the appellants' claim for damages for the costs of their proceedings in the Planning and Environment Court and Bowles' claim for damages for the costs of her proceedings against Anderson under Part III of the Landlord and Tenant Act 1948 (Qld).  Bowles' claim for damages was not under Part III of that Act but was a separate action for damages in the Supreme Court, just as here the appellants' claim is not under the Act but is by way of damages for breach of contract and breach of duty in the Supreme Court. 

12. O'Mara v Harris^[8]  is of no assistance in solving the conundrum.  In that case, reg 75 of the Regulations prohibited costs orders in proceedings to which Part III applied, including appeal proceedings, but it clearly did not prohibit costs in an application for special leave to appeal or an appeal to the High Court because such a proceeding was not a proceeding to which Part III, recovery and possession, applied.              By analogy, the costs prohibition in s 4.1.23 of the Act relates only to proceedings in the Planning and Environment Court and not to applications for leave to appeal and appeals to this Court or to the High Court from those orders; costs orders are regularly made in such appeals from the Planning and Environment Court.

13. The appellants' pleadings do not allege malice, fraud or anything of that nature such as would except their claim for damages from the general rule referred to in the passage set out earlier in Anderson v Bowles;^[9] cf Berry v British Transport Commission;^[10] Coleman v Buckinghams Limited^[11] and Union Discount Co Ltd v Zoller.^[12]

14. Section 4.1.23 of the Act is effectively a statutory prohibition against the recovery of costs except in the circumstances set out in s 4.1.23(2), so that, in accordance with the principles set out in Anderson v Bowles, the appellants remain precluded from claiming those costs in a subsequent action.^[13]  The application of s 4.1.23 to this case is effectively an order of the court that there be no order as to costs, not simply that there has been no order as to costs.  The statements of law made by the High Court in Anderson v Bowles^[14] remain apposite: the legislature having determined that costs shall not be recoverable in the Planning and Environment Court in the circumstances of the appellants' application against the respondents, it would be contrary to established legal principles to allow the appellants to recover those costs in their Supreme Court action, in, as it were, "a side wind".  The learned primary judge was right to strike out this part of the appellants' claim. 

15. I would refuse the appeal with costs to be assessed.

16. McPHERSON JA:  I agree with the reasons and the orders proposed by White J.

17. The question is whether, in providing that each party to a proceeding in the Planning and Environment Court must bear its own costs of that proceeding, s 4.1.23(1) of the Integrated Planning Act 1997 applies not only to a proceeding in that court but extends to an action in another court to recover the amount of those costs as loss or damages sustained by reason of a breach of contract. In other words, the question is whether as a matter of policy s 4.1.23(1) imposes a general prohibition on the recovery of such costs in every court established for hearing and determining claims at law; or, on the other hand, is confined to directing the Planning and Environment Court how it is to dispose of questions of costs in proceedings before it in its particular jurisdiction.

18. The conclusion that it bears the latter more restricted meaning is borne out by the decision of the High Court in O'Mara v Harris (1948) 77 CLR 490, which is referred to in the reasons of White J,  but was not mentioned in Anderson v Bowles (1951) 84 CLR 310 The matter can, I think, be tested by asking whether the direction in     s 4.1.23(1) is so broadly designed as to render ineffectual an express contract between parties to proceedings in that Court that one of them should indemnify the other, wholly or in part, in respect of the costs of that party in those proceedings. Such agreements to indemnify would, one might suppose, be not uncommon in practice; for example, in the case of one interested objector party in favour of another. It would be surprising if the reach of s 4.1.23(1) is so wide as to invalidate an agreement like that altogether; and, if that is so in the case of a specific agreement to pay the other party’s costs, it must also be true of the general right to recover damages arising out of a breach of contract measured, as in this case it would be, by the loss occasioned by having to pay one’s own costs in accordance with the statutory direction in s 4.1.23(1). In my opinion that provision should be interpreted only as limiting the power to award costs in that court and not as declaring that such costs are necessarily and always irrecoverable in any proceedings based on a distinct cause of action enforceable by other means and in another forum.

19. The appeal should be allowed.

20. WHITE J:  The appellants appeal from a decision in the Trial Division striking out para 31(a) of their statement of claim wherein they claim $161,729.81 as damage being costs associated with proceedings in the Planning and Environment Court.  The respondents argued successfully below that in light of s 4.1.23(1) of the Integrated Planning Act 1997 the appellants were precluded from recovering those costs as damages in separate Supreme Court proceedings.  That section provides

“Each party to a proceeding in the court must bear the party’s own costs for the proceeding.”

21. On 7 April 2000 the appellants contracted with the first respondent (“Permarig”) to purchase certain land at Rocklea on which they intended to construct industrial premises the plans for which had earlier been submitted to the second respondent (“the Council”). Prior thereto the subject land, which was contaminated land, had been created by the subdivision of a lot owned by Permarig. The Council approved Permarig’s application to subdivide subject to conditions described compendiously as “the approval package” including conditions about fill and earthworks.

22. The appellants plead that on or about 12 April 2000 the conditions of the approval package had not been met by Permarig and in order to secure the uncompleted works to enable early sealing of the survey plan Permarig provided security for the works.

23. The contract settled on 19 April 2000 and on 1 June 2000 “in reliance on the sealing” by the Council of the survey plans the appellants became the registered proprietors of the land. On 9 June 2000 the appellants entered into a construction agreement with a third party to construct the industrial shed on the land. That construction was given development approval by the Council in about August 2000 with an expected completion date of November 2000.

24. The appellants contend that Permarig failed to comply with the terms of the approval package about fill and earthworks and accordingly they were unable to commence construction of the industrial shed. The appellants required Permarig to rectify its non-compliance with the approval package and also required the Council to ensure compliance which both declined to do.

25. The appellants commenced proceedings in the Planning and Environment Court (Application No 4516/2000) on 10 November 2000 for declarations about non-compliance and orders against Permarig and the Council. The Planning and Environment Court after a contested hearing made declarations on 30 March 2001 that certain conditions of the approval package had not been complied with; made findings that Permarig had breached the conditions of approval and had committed development offences pursuant to s 4.3.3(1) of the Integrated Planning Act; and ordered Permarig to remedy its offences and comply with orders about earthworks.  It made no declarations or orders against the Council.

26. Permarig notified the appellants on 23 July 2001 that it had complied with the orders of the Planning and Environment Court and the erection of the industrial shed was completed by October 2001.

27. The appellants commenced proceedings in the Supreme Court by claim and statement of claim dated 30 April 2002 for damages for breach of contract against Permarig being the costs associated with proceedings in the Planning and Environment Court, additional development and construction costs owing to delays in construction of the industrial shed and loss of profits resulting from the delay. Against the Council the appellants plead reliance and breach of duty to take reasonable care to require or ensure compliance with the approval package. The same loss and damage is claimed as against Permarig. By their defences the respondents allege that the claim for the costs incurred by the appellants in the Planning and Environment Court are not maintainable as damage in the Supreme Court because s. 4.1.23(1) of the Integrated Planning Act precludes such costs being awarded.

28. No costs were sought in the Planning and Environment Court and no order about costs was made.

29. Section 4.1.23(1) appears in Chapter 4 – Appeals, Offences and Enforcement Part 1 – Planning and Environment Court. The jurisdiction given to that court is exclusive, s 4.1.2. In certain circumstances the Planning and Environment Court may, notwithstanding the prohibition in subs. (1), order costs, for example, where the court considers the proceeding was instituted merely for the purpose of delay, s 4.1.23(2)(a). Subsections (3), (4), (5), (6) and (7) are mandatory provisions about orders for costs in certain specified circumstances. It is not suggested that the proceeding heard in the Planning and Environment Court fell within any of the described circumstances where costs might have been ordered.

30. It is trite to observe that costs are the creation of statute and may not be ordered in a proceeding unless there is power to do so. The cases from which principles about recovery as damages of expenditure incurred in previous legal proceedings are described in McGregor as “a heterogeneous group”, Damages, (16^th ed., 1997), para 738 but it is possible to draw some general propositions.  A succinct statement is found in Mayne on Damages (11^th ed., 1946), at 119 quoted by Devlin LJ in Berry v British Transport Commission [1962] 1 QB 306 at 319

“It was regarded as a general principle that the right to costs must always be considered as finally settled in the court where the question to which that right was accessory was determined; so that, if any costs were awarded, nothing beyond the sum taxed according to the rules of the court could be recovered; or if costs were expressly withheld in a particular case, none would be recoverable by suit in any other court.”

The rationale for the rule was said to derive from observations of Mansfield CJ in Hathaway v Barrow (1807) 1 Camp 151; 170 ER 909.  In that case the Lord Chancellor had already made an order for party and party costs on a separate petition.  Chief Justice Mansfield is reported to have ruled that “it would be incongruous to allow a person one sum as costs in one court, and a different sum for the same costs in another court”.  In other words, the same question could not be twice adjudicated.  The increasing discrepancy between party and party costs and the amount of costs actually incurred drove the desire to recover the difference in subsequent proceedings but in Doe v Filliter (1844) 13 M&W 47; 153 ER 20 Pollock CB firmly eschewed any possibility of recovery stating that the taxed costs were meant to be fair indemnity.

31. But that did not mean that the costs would always lie where they fell. If, in the earlier proceedings, there had been no adjudication about costs a party in subsequent proceedings might recover the costs incurred in the earlier proceedings and this would be on the reasonable and not confined to the necessary basis, Pritchet v Boevey (1833) 1 C&M 775; 149 ER 612.  This rule included cases where the first court was precluded from ordering costs, Nowell v Roake (1827) 6 LJKBOS 26;           7 B&C 404; 108 ER 774; and Grace v Morgan (1836) 2 Bing (NC) 534; 132 ER 208, where the rule is explained by Tindal CJ.  If costs were expressly not ordered by the court which had the power to do so they might not be recovered in a subsequent proceeding, Loton v Devereux (1832) 3 B&Ad 343; 110 ER 129. 

32. Cases which necessarily involved two distinct proceedings regularly allowed recovery of the costs of the first proceeding either where the first court had no power to order costs or was silent about costs altogether, although there is inconsistent authority for the later proposition, for example, Malden v Fyson (1847) 11 QB 292; 116 ER 486 per Denman LCJ where the costs of  earlier Chancery proceedings were not allowed in subsequent proceedings; cf Collen v Wright (1857) 7 El & Bl 301; 119 ER 1259, aff’d Exchequer Chamber 8 El & Bl 647; 120 ER 241, where costs were allowed where no order had been made in Chancery proceedings. 

33. A collection of more recent authorities giving effect to these principles has been made by Hamilton J in Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2000] NSWSC 1100 at paras [34]-[46].  It is unnecessary to discuss them further because the respondents have here conceded that, but for s 4.1.23(1), such a head of damage as claimed in para 31(a) of the appellants’ statement of claim is maintainable at law.  They contend that the proper construction of s 4.1.23 is governed by the decision of the High Court in Anderson v Bowles (1951) 84 CLR 310 and persuaded his Honour below to that view.  That case concerned litigation arising out of the recovery of possession of premises by a landlord.  For the purposes of this appeal it is unnecessary to recite the detail of that rather complex litigation.  Suffice to say that the landlord gave notice to quit to her tenant under the National Security (Landlord and Tenant) Regulations 1945 (Cth) on the grounds that he had committed waste and had sublet.  She then commenced proceedings under the Summary Ejectment Act 1867 to put her in possession.  The tenant made application for rescission of the order for possession which was granted by the magistrate.  The landlord successfully appealed that decision, Bowles v Anderson [1949] St R Qd 36.  An appeal to the High Court by the tenant was abandoned.  The warrant for possession in due course was executed and the landlord went into possession of the premises.         She then commenced an action in the Supreme Court against the tenant claiming damages caused by the loss of mesne profits and/or rental and in respect of the expense incurred by way of costs of the legal proceedings in her efforts to recover possession of the premises.  The tenant demurred to so much of the statement of claim as claimed loss of mesne profits and for costs of the legal proceedings.

34. The Landlord and Tenant Act 1948 replaced the National Security (Landlord and Tenant) Regulations and s 62 of the Act reflected reg 75.  Section 62 provided

“No costs shall be allowed in any proceedings in relation to which this Part applies, not being proceedings in respect of an offence arising under this part.”

Part III in which s 62 was located concerned recovery of possession including provision for appeals to the Supreme Court.

35. Whilst accepting that in certain cases, including in an action to recover mesne profits, a landlord is entitled to recover as damages the costs incurred in recovering possession, the court (Dixon, Williams, Fullagar and Kitto JJ; McTiernan J in a separate judgment reached the same conclusion) concluded that s 62 precluded such recovery. After discussing cases where a party obtained as damages the costs of earlier proceedings of recovering possession their Honours said at 323

“In the present case the plaintiff seeks to apply the foregoing rule to the costs of the proceedings under the Landlord and Tenant Regulations which ended in the ejectment of James.  Regulation 75, corresponding with s 62 of the Act, provides, however, that no costs shall be allowed in any proceedings in relation to which the Part applies not being proceedings in respect of an offence.  This is a legislative declaration that the parties to proceedings for the recovery of possession or proceedings arising thereout shall not be liable to one another for the costs of those proceedings.” (italics added)

With respect to their Honours their paraphrase of s 62 italicised above is a rather broader statement of what appears in the section itself which is nowhere exactly set out in the reasons for judgment.  It is arguable that “in any proceedings in relation to which this Part applies” is narrower in its effect than “proceedings arising thereout” but s 40 of the Landlord and Tenant Act which commences Part III, not referred to in the judgment, provided that the Part was to be

“read with the ‘Summary Ejectment Act of 1867,’ and with the ‘Distress Replevin and Ejectment Act of 1867,’ as amended by subsequent Acts, and with any other Act, or law, or rule, or practice of law relating to the termination of tenancies or the recovery of possession of premises or the ejectment of tenants therefrom, and every such Act, or law, or rule, or practice of law shall, save in so far as it is inconsistent with this Part, continue to apply as heretofore to and with respect to the recovery of tenements unlawfully held over.”

36. At 323-4 their Honours concluded

“In the face of this legislative declaration [s 62] can costs be properly included in the damages or mesne profits?  It is a general rule that where it is sought to include costs incurred in other proceedings in the damages arising upon a cause of action, costs shall not be included, if as a matter of judicial determination or by a positive rule of law they are treated as costs which should be borne by the party suing ... The legislature having determined that costs shall not be recoverable in proceedings of the character now in question, it would be contrary to the principles which these cases exemplify if they were included in the damages and thus were made recoverable by a side wind.  The case in not like Nowell v Roake depending upon a rule of the common law which simply ignored costs of legal proceedings of the character in question.  It is one where the legislature, having considered whether in such proceedings costs should or should not be awarded, has expressed its conclusion in a definite provision.  This should stand on the same footing as a judicial pronouncement upon the same question and as the rule that the difference between party and party costs judicially awarded and costs as between solicitor and client are not recoverable.” (italics added)

37. The High Court (Latham CJ, Rich, Dixon and McTiernan JJ), in a decision not referred to in Anderson v Bowles, O'Mara v Harris (1948) 77 CLR 490, considered an application for special leave to appeal on facts very similar to Anderson v Bowles.  A landlord applied to a local court at Perth for an order for the possession of premises under the National Security (Landlord and Tenant) Regulations.       The application was dismissed on the ground that the tenant was a protected person.  The landlord appealed to the Supreme Court, unsuccessfully, with costs awarded against him.  He sought special leave to appeal on the substantive matter and the costs order.  The High Court granted special leave to argue the order made about costs.  Regulation 75, as in Anderson v Bowles, provided that no costs should be allowed in any proceedings “in relation to which this part of the Regulations applies”.  The Regulations expressly provided for an appeal on questions of law only to the Supreme Court of a State.  Latham CJ held that such an appeal was a proceeding in relation to the Regulations and it therefore fell within the prohibition in reg 75.  However different considerations applied to the costs of the special leave application.  His Honour said at 492

“There is a distinction between the jurisdiction of the Supreme Court with respect to costs under the regulations as they now stand, and the jurisdiction of the High Court in relation to such costs on an appeal or application for special leave to appeal to the High Court.  Neither of these are proceedings to which the regulations apply; they are proceedings which are authorized and taken by virtue of the Judiciary Act.  Accordingly, the Supreme Court did not have power to award costs upon the appeal in the Supreme Court, but this Court has power to award costs in relation to this application.”

38. The proceedings commenced in the Supreme Court for damages for breach of contract and duty by the appellants do not arise in any relevant sense from the proceeding in the Planning and Environment Court. The expression used in s 4.1.23(1) not only identifies those to whom it is addressed by describing them as “each party to a proceeding in the court” but it also confines the prohibition on the award of costs to orders which the Planning and Environment Court might make.

39. In Anderson v Bowles the provision which precluded an order for costs specifically referred to a wide application of the Part, see s 40.  In O'Mara v Harris the High Court held that the provision precluding costs did not apply to proceedings governed by different legislation.  The “side wind” which the High Court deprecated in Anderson v Bowles as an attempt to subvert the intention of the legislature will not blow in a court hearing a claim for damages for breach of contract. 

40. The Explanatory Notes for the Integrated Planning Bill do not elaborate on s 4.1.23(1) but the overall object of the Act “is to seek to achieve ecological sustainability through coordinated planning, and the management of development and its effects on the environment”. The Notes refer to “greater demands for public ... involvement in the decision-making process”. A provision precluding orders about costs except in the limited circumstances set out in s 4.1.23 gives effect to this desire to permit community participation in development decisions without the threat of adverse costs orders. This is quite different from proceedings for damages for breach of contract and whilst by no means of the same kind as proceedings for malicious prosecution, malicious arrest and conspiracy, a group of cases where the costs of the earlier proceedings have regularly been allowed as damages in subsequent proceedings, it cannot be supposed that the legislature intended that a person who has declined to fulfil his or her contractual obligations should be protected from a claim for the reimbursement of the costs of being required to have a hearing in another court, Coleman v Buckinghams Limited [1964] NSWLR 363 at 369; see also Berry v British Transport Commission, above.  It follows that the learned Judge below was not required, as he did, to construe s 4.1.23(1) in the same way as the High Court construed s 62 of the Landlord and Tenant Act in Anderson v Bowles. 

41. Although no orders were made against the Council in the Planning and Environment Court it resisted the appellants’ proceedings there and joined in the application to strike out below. It will be a matter for argument as to whether the costs of the Planning and Environment Court proceedings can be sustained as a head of damage against it. The Council has resisted this appeal.

42. The orders which I would make are:

1. Allow the appeal with costs.

2. Set aside the order made below striking out para 31(a) of the appellants’ statement of claim with costs and in lieu order that the application be dismissed and the respondents pay the applicants’ costs below.