Bobolas v Waverley Council - [2022] NSWLEC 35

Land and Environment Court

New South Wales

Medium Neutral Citation: Bobolas v Waverley Council [2022] NSWLEC 35
Hearing dates: 30 March 2022
Date of orders: 31 March 2022
Decision date: 31 March 2022
Jurisdiction: Class 4
Before: Pain J
Decision:
The Court orders:
(1) Ms Elena Bobolas and Mrs Mary Bobolas must pay the costs of the Respondent Council in the proceedings, as agreed or assessed.

Catchwords:
COSTS – dismissal of summons relevant event informing awarding of costs to successful respondent – no disentitling conduct

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Local Government Act 1993 (NSW), ss 124, 678
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Bobolas v Waverley Council (No 3) [2021] NSWLEC 63
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 69

Category: Costs
Parties: Liana Bobolas (First Applicant)
Elena Bobolas (Second Applicant)
Mary Bobolas (Third Applicant)
Waverley Council (Respondent)
Representation: Counsel:
E Bobolas (LIP and agent) (Second and Third Applicants)
L Sims (Respondent)
Solicitors:
N/A (Applicants)
Wilshere Webb Staunton Beattie (Respondent)

File Number(s): 2021/152006

Judgment

In Bobolas v Waverley Council (No 3) [2021] NSWLEC 63 (Bobolas No 3) Duggan J dismissed the Applicants’ judicial review challenge of a decision by the Respondent Waverley Council (the Council) to exercise its powers under s 678 of the Local Government Act 1993 (NSW) (LG Act) to carry out work at 19 Boonara Avenue Bondi (the premises) when an order to remove waste from the property issued under s 124 of the LG Act had not been complied with in the Council’s view. The proceedings also sought to restrain the Council from alleged anticipated breaches of the LG Act. The Applicants were unsuccessful in establishing a breach of the LG Act or in obtaining a restraining order. Their summons was dismissed.
The background facts are that the Council issued an order under s 124 of the LG Act on 29 January 2020 requiring the removal of waste from the premises within a 28 day period. A notice of intention to enter premises to carry out work not done pursuant to s 678(1) of the LG Act was issued by the Council on 20 May 2021. It stated that the Council intended to enter onto the premises to undertake necessary waste removal work on 1 June 2021. At the interim injunction application hearing on 31 May 2021 the Council undertook not to enter onto the premises until one day after the determination of proceedings, with the hearing set down for 4 June 2021.
I am determining a notice of motion dated 21 June 2021 the Council has filed seeking an order that its costs of the proceedings be paid by the Applicants (Respondents on the Council’s motion). The notice of motion was supported by an affidavit of Cecilia Rose affirmed 21 June 2021 which essentially identified the procedural history of the matter and annexed the Applicants’ summons and the judgment in Bobolas No 3. The Council has advised the Court that…

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: [2022] NSWLEC 35
Decision Date: 31 March 2022

CaseChat Overview and Summary

In the case of Bobolas v Waverley Council, Elena and Mary Bobolas contested a decision made by Waverley Council regarding a zoning dispute over a property they owned. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the Council's decision to deny the applicants' development application was lawful and whether it was made in accordance with the relevant statutory framework and planning policies.

The applicants argued that the Council's decision was flawed, claiming that it had failed to properly consider the relevant planning policies and had acted in an unreasonable manner. They further contended that the decision had significant financial implications for them. In response, the Council maintained that its decision was lawful and that it had adequately considered the planning policies and statutory requirements. The court was tasked with determining whether the Council's decision was legally sound and whether it was made in accordance with the law.

In its judgment, the court found that the Council's decision was indeed lawful. The court held that the Council had properly considered the relevant planning policies and statutory requirements and had exercised its discretion in a reasonable manner. The applicants' contention that the decision had been made unreasonably and without proper consideration of the planning policies was rejected. Consequently, the court dismissed the applicants' appeal, upholding the Council's decision. The court also ordered that the applicants pay the costs of the Council in the proceedings, as agreed or assessed.

Orders

Orders of the court

The Court orders:

(1) Ms Elena Bobolas and Mrs Mary Bobolas must pay the costs of the Respondent Council in the proceedings, as agreed or assessed.

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:	Bobolas v Waverley Council [2022] NSWLEC 35
Hearing dates:	30 March 2022
Date of orders:	31 March 2022
Decision date:	31 March 2022
Jurisdiction:	Class 4
Before:	Pain J
Decision:	The Court orders: (1) Ms Elena Bobolas and Mrs Mary Bobolas must pay the costs of the Respondent Council in the proceedings, as agreed or assessed.
Catchwords:	COSTS – dismissal of summons relevant event informing awarding of costs to successful respondent – no disentitling conduct
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98 Local Government Act 1993 (NSW), ss 124, 678 Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	Bobolas v Waverley Council (No 3) [2021] NSWLEC 63 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 69
Category:	Costs
Parties:	Liana Bobolas (First Applicant) Elena Bobolas (Second Applicant) Mary Bobolas (Third Applicant) Waverley Council (Respondent)
Representation:	Counsel: E Bobolas (LIP and agent) (Second and Third Applicants) L Sims (Respondent) Solicitors: N/A (Applicants) Wilshere Webb Staunton Beattie (Respondent)
File Number(s):	2021/152006