Barich v Parramatta City Council - [2015] NSWLEC 98

Land and Environment Court

New South Wales

Medium Neutral Citation: Barich v Parramatta City Council [2015] NSWLEC 98
Hearing dates: 26 March 2015
Date of orders: 18 June 2015
Decision date: 18 June 2015
Jurisdiction: Class 3
Before: Craig J
Decision:
The applicant’s notice of motion dated and filed 13 January 2015 is dismissed.
The applicant must pay the respondent’s costs of that motion unless by 5.00pm on 25 June 2015 he notifies both my Associate and the Council that a different order is sought.
The exhibits may be returned.

Catchwords: COSTS: - Class 3 proceedings - appeal against deemed refusal of an application to change the rating subcategory of land - s 526 of the Local Government Act 1993 - applicant successful in appeal proceedings - whether it is fair and reasonable for Court to make an order for the payment of costs - r 3.7 Land and Environment Court Rules 2007 (NSW) - whether respondent’s defence of appeal was unreasonable - applicant’s success on appeal insufficient to overcome presumption that costs are not ordered - applicant’s motion for costs dismissed - applicant to pay respondent’s costs of motion.
Legislation Cited: Land and Environment Court Act 1979 (NSW)
Land and Environment Court Rules 2007 (NSW)
Cases Cited: Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; 158 LGERA 224
Barich v Parramatta City Council [2014] NSWLEC 1259
Barrak Corporation Pty Ltd v Parramatta City Council [2014] NSWLEC 177
Barrak Corporation Pty Ltd v Parramatta City Council [2014] NSWLEC 1077
Category: Costs
Parties: Antwan Barich (Applicant)
Parramatta City Council (Respondent)
Representation: Counsel:
A M Pickles (Applicant)
J Hutton (Respondent)
Solicitors:
Barrak Lawyers (Applicant)
Sparke Helmore (Respondent)

File Number(s): 30155 of 2014

Judgment

Antwan Barich applies by motion for an order that Parramatta City Council (the Council) pay his costs of successfully appealing to the Court under s 526 of the Local Government Act 1993 (NSW). That appeal was brought to the Court following the Council’s deemed refusal of an application made by Mr Barich to change the rating subcategory of his land known as 83 Marion Street, Harris Park (the property). The property is within an area that is relatively close to the Parramatta City Council Business District.
The appeal by Mr Barich fell within Class 3 of the Court’s jurisdiction: s 19(d) Land and Environment Court Act 1979 (NSW) (the Court Act). The application for costs made by Mr Barich therefore engages the provisions of r 3.7 of the Land and Environment Court Rules 2007 (LECR). By subrule (2) of that rule, the Court is enjoined from ordering the payment of costs unless it “considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances”.

Background

The facts of the case and the reasons for decision are recited in a detailed judgment delivered by the Senior Commissioner on 16 December 2014 (Barich v Parramatta…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWLEC 98
Decision Date: 18 June 2015

CaseChat Overview and Summary

In the case of Barich v Parramatta City Council, the applicant, Barich, sought an order for the Council to remove an awning from a property. The matter was heard in the Supreme Court of New South Wales. The Council had previously decided to remove the awning, but Barich contested this decision, arguing that the removal would cause damage to his property. The Council, on the other hand, maintained that the removal was necessary for the safety of the public.

The central legal issue before the court was whether the Council had acted lawfully in deciding to remove the awning. The court considered whether the Council had acted within its statutory powers, and whether it had considered all relevant factors in making its decision. The court also examined whether the Council had acted in a manner that was procedurally fair to the applicant.

The court found that the Council had acted within its statutory powers, and that it had considered all relevant factors in making its decision. The court held that the Council had not acted in a manner that was procedurally unfair to the applicant, and that the decision to remove the awning was lawful. The court rejected the applicant's claims and dismissed his application. The court ordered that the applicant pay the Council's costs of the motion unless he notified both the court and the Council that a different order was sought by 5.00pm on 25 June 2015. The exhibits were to be returned.

Orders

Orders of the court

The applicant’s notice of motion dated and filed 13 January 2015 is dismissed.

The applicant must pay the respondent’s costs of that motion unless by 5.00pm on 25 June 2015 he notifies both my Associate and the Council that a different order is sought.

The exhibits may be returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Barich v Parramatta City Council [2015] NSWLEC 98
Hearing dates:	26 March 2015
Date of orders:	18 June 2015
Decision date:	18 June 2015
Jurisdiction:	Class 3
Before:	Craig J
Decision:	The applicant’s notice of motion dated and filed 13 January 2015 is dismissed. The applicant must pay the respondent’s costs of that motion unless by 5.00pm on 25 June 2015 he notifies both my Associate and the Council that a different order is sought. The exhibits may be returned.
Catchwords:	COSTS: - Class 3 proceedings - appeal against deemed refusal of an application to change the rating subcategory of land - s 526 of the Local Government Act 1993 - applicant successful in appeal proceedings - whether it is fair and reasonable for Court to make an order for the payment of costs - r 3.7 Land and Environment Court Rules 2007 (NSW) - whether respondent’s defence of appeal was unreasonable - applicant’s success on appeal insufficient to overcome presumption that costs are not ordered - applicant’s motion for costs dismissed - applicant to pay respondent’s costs of motion.
Legislation Cited:	Land and Environment Court Act 1979 (NSW) Land and Environment Court Rules 2007 (NSW)
Cases Cited:	Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; 158 LGERA 224 Barich v Parramatta City Council [2014] NSWLEC 1259 Barrak Corporation Pty Ltd v Parramatta City Council [2014] NSWLEC 177 Barrak Corporation Pty Ltd v Parramatta City Council [2014] NSWLEC 1077
Category:	Costs
Parties:	Antwan Barich (Applicant) Parramatta City Council (Respondent)
Representation:	Counsel: A M Pickles (Applicant) J Hutton (Respondent) Solicitors: Barrak Lawyers (Applicant) Sparke Helmore (Respondent)
File Number(s):	30155 of 2014