Singh Properties Pty Ltd v Scenic Rim Regional Council (No 2)
[2018] QPEC 36
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- Singh Properties Pty Ltd v Scenic Rim Regional Council (No 2)[2018] QPEC 36
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Singh Properties Pty Ltd v Scenic Rim Regional Council (No 2)[2018] QPEC 36
Singh Properties Pty Ltd v Scenic Rim Regional Council (No 2)[2018] QPEC 36
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Singh Properties Pty Ltd v Scenic Rim Regional Council (No. 2) [2018] QPEC 36 |
PARTIES: | Singh Properties Pty Ltd v Scenic Rim Regional Council |
FILE NO/S: | 4267 of 2016 |
DIVISION: | Planning & Environment Court of Queensland, Brisbane |
PROCEEDING: | Hearing of an application |
ORIGINATING COURT: | Planning & Environment Court of Queensland, Brisbane |
DELIVERED ON: | 31 July 2018 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 July 2018 |
JUDGE: | RS Jones DCJ |
ORDER: |
|
- [1]On 24 May 2018, I handed down my reasons dismissing an appeal bought by Singh Properties Pty Ltd, hereafter I will refer to as the appellant, against the decision of the Scenic Rim Regional Council, hereafter I will refer to as the respondent, to refuse the appellant’s application for a material change of use over the subject land. That decision is now reported as Singh Properties Pty Ltd and Scenic Rim Regional Council [2018] QPEC 27. I am now concerned with an application by the respondent for orders that the appellant pay its costs of the whole of the proceedings. Costs are sought on the standard basis.
- [2]By way of a very brief summary, the appellant was initially seeking approval for the expansion of its existing poultry farm operations, which would have seen an increase in a number of birds housed on the land from 200,000 to in the order of 605,000. That was to occur as a consequence of the construction or erection of a further nine sheds, which were to be located on two substantial pads on the subject land. During the course of the proceedings, they were described as the central pad and the southern pad.
- [3]The evidence concerning the operation of the appellant was to the effect that it was a significant contributor to the poultry business and industry in Queensland. In total, it was producing in the order of 1.75 million birds per batch across various farms. To put it bluntly, the appellant was an extremely sophisticated and successful operator of poultry farms. In this context, it is also to be noted that the appellant operated poultry farms within and outside the subject local government area. I would also observe at this stage that during the course of this proceeding, the appellant was also extremely well-armed, not only in respect of its legal representation, but also by expertise in the relevant disciplines.
- [4]During the course of the proceedings, particularly after the evidence concerning air quality and toxicology, the appellant changed its position by amending its application to provide for a staged development which would have seen each stage proceed only after stringent on-field sampling, testing, and modelling had occurred. However, between the completion of the evidence on 18 April 2018 and final addresses on 27 April 2018, its position had changed again. On 22 April 2018, the appellant’s solicitors wrote to solicitors for the respondent, relevantly stating:
“Having reflected upon the evidence given last week and taking into account the respondent’s legal team’s concerns about the protocol (including with respect to input from third parties), the appellant has provided us with instructions that is primary position in the proceeding will be to invite the Court to give preliminary approval rather than a development permit in deciding the development application the subject of the appeal. The appellant’s position is that the preliminary approval, if given by the Court, will incorporate a condition which requires the implementation of the protocol.”
- [5]The change in the position of the appellant was not the only unusual feature of this proceeding. The hearing was conducted over five sittings. The first took place between 19 and 21 April 2017 inclusive; the second, 23rd to 27 October 2017 inclusive; the third sittings, on 13 and 14 November 2017; the fourth sittings, 16 to 18 April 2018 inclusive, with closing addresses being heard on 27 April 2018. As a consequence of the number of issues, and in particular, visual amenity to be determined to be capable of being dealt with by way of conditions, the issues in the appeal really centred around town planning issues, economic need, and more particularly, air quality, odour and toxicology. In this respect, in reality, the evidence of the town planners came down to their conclusions concerning conflict, etcetera, being dependent on the evidence of the other experts. In particular, the toxicologists, and of even more significance, the evidence of the air quality witnesses.
- [6]During the first sittings, the parties opened their cases, a site inspection was conducted, and evidence was given by three witnesses. Those witnesses were Mr Duane, the economic need expert called by the appellant; Mr Easton, a senior executive within Ingham’s Enterprises Limited; and Mr Dimasi, the economic need expert relied on by the respondent. As to the evidence concerning need, it is really uncontroversial that in the event that a genuine conflict arose out of what was proposed with the relevant provisions of the planning scheme, the evidence advanced by the appellant on need would not be sufficient to overcome that conflict.
- [7]I should note here that on 31 March 2017, it was ordered that the hearing dates of 4 to 7 April 2017 inclusive be vacated; however, costs orders were made to deal with that adjournment on that date. As a consequence of the adjournment, there were two additional air quality joint reports prepared, being Exhibits 31 and 32. I would note here that the appellant was not the only party to take advantage of this adjournment in that the respondent gathered further evidence by way of statements from lay witnesses which exhibited diary entries kept by those witnesses concerning odour during the period of the adjournment. The evidence of the lay witnesses, particularly by reference to the diary entries, ended up playing a significant role in the final views expressed by the experts, particularly in respect of air quality. The advantage taken by the respondent during this adjournment, while by no means a decisive matter, it is nonetheless in my view a relevant matter to be taken into account in determining the final outcome of this application.
- [8]During the second sittings, that is, between 23 and 27 October 2017, evidence was heard from one of the principles of the appellant, the appellant’s farm manager, Mr Ferguson, and the respondent’s lay witnesses and the toxicology experts relied on by the parties, Dr Dennison for the appellant and Professor Ng for the respondent. Through no fault of either of the parties, the cross-examination of Professor Ng had to be held over until the third sittings, commencing in November 2017.
- [9]As was accepted by the respondent, to use its words, the adjournment between the second and third sittings were due to more time being required than was anticipated for the conclusion of the evidence. To my mind, it would not be appropriate to lay blame for that adjournment at the feet of either of the parties. During the third sittings, the evidence of Professor Ng was completed, and the evidence was adduced from the appellant’s air quality experts and town planners. Of significance is that between the adjournment in October and the reconvening of the appeal in November, Mr Galvin, the expert relied on by the appellant to address air quality and odour, prepared a further report, Exhibit 69. That report was dated 8 November 2017. In paragraph 5 of that report, Mr Galvin stated:
“I understand that concerns have been raised with regard to the following areas: (1) site management, (2) K factor (emission rates adopted), (3) target temperatures and (4) shared exit temperatures and shed exit temperatures for observations at nearby receptors.”
- [10]The last reference is, of course, a reference to the local residents and/or landowners that were called by the respondent as lay witnesses. In paragraphs 129 and 130, Mr Galvin concluded:
“If each of the concerns listed in section 4 was valid, that would indicate that the modelling couldn’t be relied on in an unqualified way. Nevertheless, I am of the opinion that the proposed expansion remains capable of approval with conditions which can address the concerns.”
- [11]At this stage, I would emphasise the use of the word “if” and also point out that the concerns listed in section 4 are the four matters to which I have just referred. Mr Galvin then went on in part 7 of Exhibit 69 to speak of a staged data collection program, and that part of his report again addressed concerns about his modelling that had been raised, and then went on to identify a program that could be adopted and which may form the basis of advancing expansion which could then operate without causing nuisance. Various steps identified by Mr Galvin would include: first, a demonstrated performance of the existing farm in terms of site management and odour admissions; next, construction and demonstrated performance of the central pad shed; and finally, construction and demonstrated performance of the southern pad, which in turn was based on what would occur or what had occurred in respect of the first two stages. Thereafter, Mr Galvin, in that report, went on to identify a number of matters that needed to be addressed, including odour testing, field monitoring of odour impacts, meteorological data collection, site management data collection, and dust monitoring, among other things. What was envisaged was if the testing proved positive, development would then proceed to the construction of the sheds in sequence, first, the central pads, and thereafter, if further testing proved positive, then the construction of the shed on the southern pad. Mr Galvin went on to say:
“Once constructed, the requirements in paragraph 137 would reset, it would be applied to both the existing farm and the central pad, although the extent of odour testing on the existing pad could be reduced. Once the data referred to in paragraph 137 is collected for the central pad, the methodology in 138 is repeated and shows that all three pads could operate as proposed. This would provide robust evidence that the construction and operation of the southern pad should occur.”
- [12]As is identified in the paragraphs 102 and 103 of the substantive reasons for judgment, Mr Gore candidly conceded that Exhibit 69 reflected a change in position in the nature of the case being advanced by the appellant. As also observed in my substantive reasons at paragraph 103, the staged development contemplated in Exhibit 69, at least insofar as it dealt with the stages of the development and data collection program, was further refined by yet another document which is described as a “protocol” and was tendered as Exhibit 76. It was not necessary to deal with that document as, during the course of the proceeding, it was itself overtaken by what was described as the “appellant’s amended protocol”, which became Exhibit 99.
- [13]At the conclusion of the case, in the appellant’s written outline of submissions, it was accepted that Mr Galvin had accepted that there were concerns associated with relying on his modelling. In respect of a final protocol, in paragraph 104 of my reasons for judgment, Mr Gore is recorded as submitting:
“That’s an option for your Honour. The option that I’ve referred to in the outline involves your Honour being affirmatively satisfied that a preliminary approval is appropriate and legally available in the circumstances of this case, but recognizing, as I do, on behalf of the appellant, that exhibit 99 is intended to be the basis of a protocol. I know Mr Traves got upset when I contemplate that there could be further changes, but that’s part of the condition stage. Exhibit 99 would definitely have to be addressed as part of the conditioned stage. So I would not – I would not be asking your Honour to lock in exhibit 99 because that locks out the council. I would be asking your Honour to say that you are satisfied on the strength of exhibit 99 that a feasible protocol can be developed, and therefore, a preliminary approval is appropriate.”
- [14]The complexity of what was envisaged in Exhibit 99 was reflected in the poultry stage flow chart, which became attachment A to my reasons of my reasons for judgment.
- [15]I refer to the above matters to point out the changing nature of the appellant’s case as the evidence evolved. To counsel for the appellant’s credit, they did not resile from recognizing that the appellant’s case was indeed one that had evolved or changed as the evidence evolved. But at the end of the day, I accept Mr Traves’ characterization of the appellant’s case as being one that shifted as the case proceeded, thus requiring the respondent to respond to an ever-changing case against it. In this regard, I recognize that I have tended to focus on the issue of air quality. That is so because, in my view, that evidence or that issue was what really lay at the heart of this proceeding. The next most important matter, in my view, that was that concerned with toxicology. I should point out here that, as was discussed in my reasons for judgment at paragraphs 87 and was pointed out in the respondent’s written outline in this proceeding, there were indeed a number of difficulties associated with the evidence of Dr Dennison, the expert relied on by the appellant on this topic.
- [16]Thankfully, it is not in dispute that the relevant provisions to be applied in this case are those that existed at the time in section 457 of the then Sustainable Planning Act 2009. The respondent submitted that that section relevantly provided that costs of a proceeding or part of a proceeding including an application in a proceeding were to be in the discretion of the Court. In subsection 2 of section 457, there are a number of matters that were identified as being matters that may be taken into account. In my view, in respect of those matters, the most relevant are those identified in sub-paragraph (a) of subsection 2, that is, the relative success of the parties in the proceeding, that referred in sub-paragraph (d), whether a party commenced or participated in the proceeding without reasonable prospects of success, and whether or not it was otherwise reasonable for the party to prosecute its case. There was some discussion about the matters raised in subsection (b), concerning the commercial interest of the parties, but at the end of the day, I consider that nothing really turns on that.
- [17]Before proceeding with the respective submissions of the parties, as has been observed by myself on a number of occasions, and indeed referred to in the appellant’s written submissions, as a matter of general principle, costs are not awarded to punish the unsuccessful party but instead to indemnify the successful party in respect of at least part of its costs associated with having to successfully prosecute its case or defence. Here, reference is made to the well-known statements of the High Court decision of Oshlack v Richmond Regional Council [1998] 193 CLR 72. That general principle applies here, in my view, that is, in the event of a costs order, it would not be in any way a form of punishment in respect of any part of the conduct of the appellant.
- [18]More relevantly, in respect of the provisions under the Sustainable Planning Act, there have been a number of decisions of this Court to the effect that the discretion, while expressed in general terms, must always be exercised judicially and having regard to all the relevant circumstances.
- [19]It is also well-recognized that the matters identified in subsection 2 of section 457 are not to be construed as being an exhaustive list. It has also been said that the discretion to be exercised judicially should also be exercised without any presumptions one way or the other. That is particularly referable to the more familiar provision in civil cases that costs follow the event or any other more familiar operation of costs orders. Also in this context, it has to be recognized that, while the respective success of parties is a relevant factor, and in certain circumstances might indeed prove to be a decisive factor, there is certainly no presumption that costs should ordinarily follow the event. Here I would simply refer to three cases, Cox v Brisbane City Council [2014] QPELR 95, Altitude Corporation Pty Ltd v Isaac Regional Council (No. 2) [2015] QPELR 139, and finally, YFG Shopping Centres Pty Ltd v Brisbane City Council (No. 2) [2015] QPLER 8. In the circumstances of this proceeding, it would be uncontroversial, in my view, to say that the respondent has been the successful party, but as I have said, whilst clearly a significant matter, it is not in any way decisive.
- [20]On behalf of the respondent, it was submitted that it should be awarded all of its costs of the proceeding. That is so, it was submitted, because of the so-called structural issues, that is, the underlying problems with Mr Galvin’s modelling were notified by Ms Richardson prior to this proceeding commencing. While I understand the basis for that submission, on balance, I consider it to be an unreasonable one. In this context, I accept the submission made on behalf of the appellants that, notwithstanding the difficulties identified by Ms Richardson, the appellant had in its favour a number of factors which would have given it confidence or at least comfort in being able to successfully prosecute its appeal, notwithstanding the concerns of Ms Richardson.
- [21]The appellant had, after, all, considerable experience in the successful operation within the poultry industry including within the respondent’s local government area. It also had the benefit of appropriately zoned land, which also had a number of other physical characteristics which made it ultimately suitable for poultry farm development, including, of course, the fact that there was already a poultry farm in operation on the land, albeit of a much smaller version than that being contended for. In this context, it is also of significance that notwithstanding the application being finally refused by council, its own internal officers had recommended its approval with the support of advice of experts.
- [22]It is true, as Mr Traves pointed out, that the material before the internal officers was, as it turned out, clearly defective or deficient in content, but to my mind, that is not necessarily to the point. The appellant was entitled to proceed on the basis that the proposal was, at least at the assessment stage, one supported by the relevant assessment officers within the council. Also, no doubt, the appellant would have been somewhat comforted by the fact that it was agreed between the visual amenity experts that the visual amenity issues were capable of being addressed by appropriate conditions. On balance, for the reasons given, I do not consider there would be any sufficient basis to grant a costs order against the appellant in respect of that part of the proceedings that took place in April 2017.
- [23]That said, a major difficulty for the appellant is that by the time Mr Galvin had prepared his further report, he knew or ought to have known that the farm manager, Mr Ferguson, had departed in a major way from appropriate farm management practices. The net result of his evidence was that under his management, the farm had adopted practices that, in many respects, departed from those which were recognized as being appropriate within the industry. Of particular relevance in this regard was that his evidence identified that during the last 10 days of each batch cycle, farm temperatures were deliberately lowered to increase chicken body weight, and that this practice had been taking place for some time. This was identified in my substantive reasons for judgment in paragraph 95 and 96. As a consequence of this, Mr Galvin had to make a number of concessions, including that the issue was a matter of concern, and as a consequence, there were real concerns that the K factors, that is, potential for odour impacts, may not be able to be continually capable of meeting relevant standards.
- [24]He also conceded that the conclusions drawn from the modelling performed by him were unlikely to be valid as a consequence of the failure of the existing sheds to be operated at correct temperature. In this context, his evidence was really to the effect that cold air from the existing shed would keep the plume down lower, and that that plume would be more likely to track along the ground, and that that could explain why there were worse impacts of the type reported by the lay witnesses relied on by the respondent. He also accepted that the sheds being operated at cooler than normal industry practices would tend to give more credence to the observations and recordings of the local residents. In this context, he also accepted that if those observations were substantially correct in respect of odour and dust as reported, that would further reinforce the concerns about his modelling predictions.
- [25]To sum things up in this regard, while it may be arguable, albeit applying a generous approach to things, that the appellant at least initially had no reason to believe that its case had no reasonable prospects of success, in my opinion once it had received the additional lay witness statements, those including the diary entries, and after hearing the evidence of Mr Ferguson, the appellant ought to have appreciated that its case, based as it was primarily on the evidence of Mr Galvin, had no real prospects of success. Mr Ferguson gave this evidence on day 5 of the hearing of the appeal, being the 25th of October 2017. Most of the evidence of the lay witnesses was also given on that date, although the cross-examination of Mr Potter ran over into the 26th of October 2017.
- [26]Concentrating for the moment on the submissions made on behalf of the appellant, as Mr Gore accepted there were five or six underlying matters which were relied on for the ultimate submission that there ought be no order as to costs. The first of those matters was that the case had a number of unusual features, not only in respect of the way the appeal proceeded through a number of sitting days, but also by reference to the complexity of evidence, particularly that concerning toxicology and air quality and by necessary association odour.
- [27]As I accepted in my reasons for judgment, I agree with the description of the case as being an unusual one. That said, that the case could be described as being unusual, should not be seen as a reason for not awarding costs in appropriate circumstances.
- [28]The second matter relied on was that this case had an element of public interest. In this context reference was made by Mr Gore to the High Court decision in Oshlack to which I have already referred. When one has regard to the totality of the evidence, and indeed also having regard to the submissions made at the conclusion of the hearing, it is clear to me that while there may have been some elements of public interest involved, the case itself could not be fairly described as being one really concerned with matters of public interest. To put it bluntly, the bottom line is that in prosecuting this proceeding the appellant was clearly endeavouring to advance its own commercial interest. In this context I agree with the submission made by Mr Traves to the effect that if there was any public interest it was clearly a subordinate outcome. To put it another way, any public interest could be described quite fairly, in my view, as being a by-product of the appellant pursuing its own commercial interests. That, of course, is not meant to suggest that the appellant had in any way behaved inappropriately. That is what a company would be expected to do. I refer only to these matters in the context of dealing with the submission made by Mr Gore on this point.
- [29]The third matter relied on was that while I did not initially accept that the preliminary approval approach overcame the difficulties relating to the so-called finality principle, I nonetheless did accept that, in the event that the preliminary approval was granted and each of the steps and stages contemplated in Mr Galvin’s amended protocol were achieved, there could be a number of positive outcomes. Those outcomes might have included reduction in the existing odour from the existing sheds, improved amenity for local residents as a consequence. And, depending on the level of expansion, further employment opportunities in a Local Government area where the rural industry was an important component of its overall economic viability.
- [30]It was also pointed out in this context that I accepted that given the appellant’s commitment to the poultry industry and its commitment to this particular project there were realistic, if not genuine prospects, of there being a real attempt on the part of the appellant to achieve what Mr Galvin had proposed. Again, all of this might well be accepted, but at the end of the day none of those matters advance the appellant’s case; that is, notwithstanding those matters, the appeal was refused for the reasons given. As was the case when dealing with the submissions made about the unusual nature of this proceeding that these benefits might have been achieved could in no way amount to, in my view, a sensible ground for refusing costs in an appropriate case.
- [31]Whilst somewhat out of order by reference to the appellant’s written outline of submissions, the next matter that was relied on was concerned with the application of the so-called finality principle. In this context significant emphasis was placed on my consideration of an earlier decision of this Court in Tower 720 Proprietary Limited v Hervey Bay City Council [2003] QPELR 178. In this context it is said in paragraph 31 of the appellant’s written outline:
“Nor could it be said that Singh’s legal argument on the availability and feasibility of the preliminary approval was groundless or not fairly arguable. The court devoted 40 paragraphs of its reasons to the legal arguments raised and the court did not lightly discard a support given to Singh’s argument by the decision in Tower 720.”
- [32]It is true that I did devote significant time in dealing with the Tower 720 case. Some might even say too much time. Nonetheless, that so much time and effort was spent in dealing with that case was simply because of the importance placed on it by the appellant. In any event, at the end of the day it is clear from my substantive reasons that I was left in no doubt that the facts, circumstances and consequences of Tower 720 could be, to use the words used in the judgment, “readily distinguished from the subject case”. Here I am referring to paragraph 131 of the substantive judgment.
- [33]As to the reliance on the other authorities by the appellant to support its finality principle argument, it was in my view an argument that had no reasonable prospects of success. As I pointed out in my substantive reasons at paragraph 133, none of the cases to which I was referred, either expressly or by implication, watered down the principles enunciated in the authorities relied on by the respondent, and in particular the decisions of the Court of Appeal in Mt Marrow Blue Metals Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd R 347 and perhaps more significantly McBain v Clifton Shire Council [1996] 2 Qd R 493.
- [34]Those observations can be found in paragraph 133 of the substantive reasons for judgment. At paragraph 142 of those reasons it is also clear that after considering the cases I was left in no doubt of the applicability of the finality principle as expressed in McBain. In this context I concluded:
“The principle applies, and the proposal as finally articulated, offends it. It involves a deferral over an unspecified time frame of the consideration and determination of a critical matter to the respondent.”
- [35]As I have already said, it is my view that the appellant’s case concerning the applicability or otherwise of the finality principle had no reasonable prospects of success.
- [36]The final matter relied on was that described as the council’s “rear guard action”. What was meant by that was clarified by Mr Gore during submissions today. In effect what was meant was that the respondent was seeking to rely on evidence of witnesses about odour emissions and in particular in this context, that of Mr Pemberton who on 12 November 2015 identified a number of concerns. The thrust seemed to be that, according to Mr Gore, the appellant was seeking to use evidence which came into force or effect at a later time to be used to backtrack back to the commencement of the proceeding.
- [37]While I think I understand the thrust of this submission and recognise that the appellant seemed to place undue weight on Mr Pemberton’s evidence, it struck me that during the course of final submissions today, the respondent was really relying on the evidence of Ms Richardson that identified a number of problems associated with the appellant’s case in contending for the costs to include the April 2017 sittings.
- [38]While it may not necessarily be accurate as the appellant contended, to say that it had been completely successful in every aspect in aspect of town planning, economic need, air quality and toxicology and the finality issues, there could be no doubt that it was substantially successful in respect of the more important aspects of this case which, moving from the least significant towards the most significant, being economic need, toxicology, the finality principle and finally air quality. Indeed, in respect of the last two it would be accurate to say that the respondent had been to all intents and purposes completely successful.
- [39]It is not necessary, in my view, to go through the appellant’s submissions in any more detail. By way of conclusion I would say that I am not sufficiently satisfied for the reasons given to make a costs order in favour of the respondent in respect of that part of the appeal dealt with in April 2017. As at that time for the reasons already stated, I do not consider that the appellant’s case at least at that stage warranted a costs order on the basis of it being one where there were no reasonable prospects of successful, or indeed for any other reason. Also, as I have already identified, both parties took the opportunity to advance its evidentiary position during the adjournment from 21 April 2017 through to 23 October 2017.
- [40]However, by reference to what I have already said, the evidence of Ms Richardson had made it quite clear that the appellant had serious problems associated with its air quality evidence at a very early stage and as a consequence also the issue of toxicology. Even accepting for the moment that the concerns of Ms Richardson may not of their own have been so determinative as to warrant the appellant abandoning its case, that evidence together with the evidence of Mr Ferguson given on 25 October 2017, together with the evidence of the lay witnesses which was also in the possession of the respondent by that time, ought to have made it sufficiently clear to the appellant that Mr Galvin’s modelling had no reasonable prospects of establishing that there would not, as a consequence of the expanded farm, be substantial conflict with the respondent’s planning scheme. In this context I would repeat again that the need argument advanced by the appellant could have never overcome any substantive conflict issues.
- [41]By way of summary it is my opinion that at the conclusion of the evidence on 25 October 2017 at the latest, the appellant should have recognised the significance of the weakness in its case, and that in reality it had no reasonable prospects of prosecuting its case and ought to have abandoned its appeal by that stage.
- [42]I recognise that that would have resulted might well have resulted in unfavourable cost consequences for the appellant, but by continuing to prosecute the appeal in the way it did it drew the respondent into the position of having to battle the case as it evolved in circumstances where it was really one where the appellant ought not to have proceeded further.
- [43]In reaching the conclusions that I have I am conscious that by reference to the matters raised in the respondent’s submissions there may well have been a strong argument that costs ought be awarded even if not for the April sittings, then for the entirety of the October sittings onwards. That said, taking all matters into account on balance, adopting a conservative approach and one that in my view is one that arguably favours the appellant in respect to the issue of the knowledge of the farm management issues identified, I consider that the final orders ought be that the appellant is to pay the respondent’s costs of the proceedings from 26 October 2017 through to 27 April 2018 when the closing addresses were concluded, those dates being inclusive.
- [44]As to the cost of the hearing of the cost application having regard to the overall outcome, I consider it appropriate to make no order as to the costs of today’s proceeding. I will hear further from the parties, if necessary, in the event that the orders made are not sufficiently clear.
- [45]For the reasons given the orders that I make are:
- That the appellant is to pay the respondent’s costs of the proceeding from 26 October 2017 to 27 April 2018 inclusive;
- Second, that in respect of today’s proceeding there are no orders as to costs.