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Beilby v Viney Pty Ltd

Beilby v Viney Pty Ltd

Case [2000] NSWLEC 93

Costs

Specific Performance

Jurisdiction

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Environmental Law

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Land and Environment Court

of New South Wales

CITATION: Beilby v Viney Pty Ltd & Anor [2000] NSWLEC 93

PARTIES: APPLICANT:
Ian Thomas BEILBY
FIRST RESPONDENT
Viney Pty Ltd (ACN 074 308 115)
SECOND RESPONDENT
Peter EPOV

FILE NUMBER(S): 40221 of 1998

CORAM: Sheahan J

KEY ISSUES: Costs :- in Class 4

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194;
Byron Shire Council v Vigden & Anor [1999] NSWLEC 285;
Duncan v Moore & Ors (1999) 103 LGERA 312;
Hayden Theatres Pty Ltd v Penrith City Council & Anor (1998) 105 LGERA 230;
Jan Yee Australia Pty Ltd v Woollahra Council & Anor (40232 of 1995, 26 March 1997, Bignold J);
Latoudis v Casey (1990) 170 CLR 534;
Leichhardt Municipal Council v Jeffrey & Ors [1998] NSWLEC 143;
Marrickville Council v Syfurn Pty Ltd & Ors [1999] NSWLEC 71;
National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 71 LGRA 286;
North Sydney Municipal Council v Janakis & Anor (1993) 80 LGERA 132;
Plumb v Comcare (1992) 39 FCR 236;
Port Stephens Shire Council v Grivas & Ors [1999] NSWLEC 135;
Proprietors of Strata Plan 20754 v Hawkesbury City Council & Anor (1991) 73 LGRA 199;
Re Minister for Immigration & Ethnic Affairs v Ex parte Lai Quin (1997) 186 CLR 622;
Thomson v Mosman Council & Anor [1999] NSWLEC 86

DATES OF HEARING: 19/04/00

DATE OF JUDGMENT:
05/11/2000

LEGAL REPRESENTATIVES:
APPLICANT
Mr P Rigg (Solicitor)
Deacons Graham & James
FIRST AND SECOND RESPONDENTS
Mr C Gough (Solicitor)
Storey & Gough

JUDGMENT:

IN THE LAND AND Matter No: 40221 of 1998

ENVIRONMENT COURT Coram: Sheahan J

OF NEW SOUTH WALES 11 May 2000

IAN THOMAS BEILBY

Applicant

VINEY PTY LTD (ACN 074 308 115)

First Respondent

PETER EPOV

Second Respondent

JUDGMENT

Introduction

1. These Class 4 proceedings were fixed for hearing on 11-12 October 1999 and then resolved by way of consent orders made by Cowdroy J on 11 October 1999. The question of costs was specifically reserved.

2. By Notice of Motion filed 21 December 1999, which came on for hearing on 19 April 2000, the applicant has sought an order that the First and Second Respondents pay his costs on a party-party basis, both of the substantive proceedings and of this Notice of Motion. The Respondents seek an order that all parties pay their own costs. Both sides agree that the costs of the Notice of Motion should “ follow the event ”.

3. The parties agreed that the matter be dealt with by the tendering by their solicitors of respective bundles of documents and the court agreed to that course. In the documents, only Mr Epov appears to speak for Viney Pty Ltd, so I will refer to both respondents collectively as “ the respondents ” without distinguishing between them. The same solicitors have acted for the parties throughout the proceedings, namely Mr C…

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.

Continue reading Beilby v Viney Pty Ltd

Details

AGLC: Beilby v Viney Pty Ltd [2000] NSWLEC 93
Case: [2000] NSWLEC 93
Decision Date: 05/11/2000

CaseChat Overview and Summary

The applicant, Ian Thomas Beilby, sought an order that the respondents, Viney Pty Ltd and Peter Epov, pay his costs on a party-party basis of the substantive proceedings and of the Notice of Motion. The respondents sought an order that all parties pay their own costs. The substantive proceedings concerned the state of repair of the access road and the construction of a dam. The court resolved the proceedings by way of consent orders on 11 October 1999. The issue before the court was whether the proceedings were justifiably commenced and continued, and whether they would have succeeded if fully litigated. The court found that the proceedings were not justifiably commenced and continued, and that it was not more likely than not that the proceedings would have succeeded if fully litigated. The court ordered that each party pay their own costs of the substantive proceedings and that the applicant pay the respondents' costs of the Notice of Motion.

Orders