Bolinger v Blackmore Design Group (No 2) - [2015] NSWLEC 45

Land and Environment Court

New South Wales

Medium Neutral Citation: Bolinger v Blackmore Design Group (No 2) [2015] NSWLEC 45
Hearing dates: 19, 20 March 2015 (written submissions)
Decision date: 30 March 2015
Jurisdiction: Class 1
Before: Pain J
Decision:
1. Appellant is to pay the First Respondent’s costs of the summons commencing a s 56 appeal dated 5 November 2014.
2. Costs to be limited to one counsel’s fees.

Catchwords: COSTS – whether fair and reasonable to award costs to successful respondent in s 56A appeal from commissioner’s decision
Legislation Cited: Land and Environment Court Act 1979 s 56
Land and Environment Court Rules 2007 r 3.7
Cases Cited: Bolinger v Blackmore Design Group [2015] NSWLEC 38
Mike George Planning Pty Ltd v Woollahra Municipal Council (No 4) [2014] NSWLEC 187
Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 138
Pepperwood Ridge Pty Ltd v Newcastle City Council [2008] NSWLEC 196; (2008) 160 LGERA 164
Category: Costs
Parties: Bolinger, Donna-May (Appellant)
Blackmore Design Group (First
Respondent)
Council of the City of Sydney (Second Respondent)
Representation:
Counsel:
Mr P Beazley (solicitor) (Appellant)
Mr M Staunton with Ms J Reid (First Respondent)
No appearance (Second Respondent)
Solicitors:
Beazley Singleton Lawyers (Appellant)
Sattler & Associates Lawyers (First Respondent)

File Number(s): 10913 of 2014

Judgment

Judgment on costs

I did not grant leave to appeal to the Appellant for her summons filed out of time and dismissed the s 56A appeal in Bolinger v Blackmore Design Group [2015] NSWLEC 38. The First Respondent seeks its costs as the successful party. I did not make an order as to costs at the delivery of the earlier judgment as the Appellant requested the opportunity to make further submissions on this aspect of the proceedings. The Second Respondent, the Council of the City of Sydney, filed a submitting appearance and does not seek costs in these proceedings. The relevant parties filed written submissions on the issue of costs.
Rule 3.7 of the Land and Environment Court Rules 2007 (the Court Rules) applies to s 56A appeals (Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 138 at [48]) and states:

3.7 Costs in certain proceedings
… (2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.
(3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following:
(a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question:
(i) in one way was, or was potentially, determinative of the proceedings, and
(ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings,

…
(d) 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: [2015] NSWLEC 45
Decision Date: 30 March 2015

CaseChat Overview and Summary

The appeal involved a dispute between Bolinger, the appellant, and Blackmore Design Group, the first respondent, with the matter being heard in the Supreme Court of New South Wales. The dispute stemmed from an earlier interlocutory injunction application that was granted by the first respondent. The appellant sought to appeal the interlocutory injunction, arguing that it was improperly granted. The appeal was heard by the Court of Appeal, which was required to determine whether the interlocutory injunction was correctly issued and, if so, whether the appellant should bear the costs of the appeal.

The court had to decide whether the interlocutory injunction was correctly granted and whether the appellant should bear the costs of the appeal. The court examined the grounds of appeal, which were based on the argument that the interlocutory injunction was improperly granted. The court found that the interlocutory injunction was correctly granted and that the appellant had not demonstrated any error in the decision to grant the injunction. The court also considered the costs of the appeal, which were limited to one counsel's fees.

The court found that the interlocutory injunction was correctly granted and that the appellant had not demonstrated any error in the decision to grant the injunction. The court held that the appellant should bear the costs of the appeal, which were limited to one counsel's fees. The court held that the appellant was not entitled to an order for costs and that the first respondent was entitled to recover their costs of the appeal. The court held that the costs should be limited to one counsel's fees, as per the orders of the court.

Orders

Orders of the court

1. Appellant is to pay the First Respondent’s costs of the summons commencing a s 56 appeal dated 5 November 2014.

2. Costs to be limited to one counsel’s fees.

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:	Bolinger v Blackmore Design Group (No 2) [2015] NSWLEC 45
Hearing dates:	19, 20 March 2015 (written submissions)
Decision date:	30 March 2015
Jurisdiction:	Class 1
Before:	Pain J
Decision:	1. Appellant is to pay the First Respondent’s costs of the summons commencing a s 56 appeal dated 5 November 2014. 2. Costs to be limited to one counsel’s fees.
Catchwords:	COSTS – whether fair and reasonable to award costs to successful respondent in s 56A appeal from commissioner’s decision
Legislation Cited:	Land and Environment Court Act 1979 s 56 Land and Environment Court Rules 2007 r 3.7
Cases Cited:	Bolinger v Blackmore Design Group [2015] NSWLEC 38 Mike George Planning Pty Ltd v Woollahra Municipal Council (No 4) [2014] NSWLEC 187 Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 138 Pepperwood Ridge Pty Ltd v Newcastle City Council [2008] NSWLEC 196; (2008) 160 LGERA 164
Category:	Costs
Parties:	Bolinger, Donna-May (Appellant) Blackmore Design Group (First Respondent) Council of the City of Sydney (Second Respondent)
Representation:	Counsel: Mr P Beazley (solicitor) (Appellant) Mr M Staunton with Ms J Reid (First Respondent) No appearance (Second Respondent) Solicitors: Beazley Singleton Lawyers (Appellant) Sattler & Associates Lawyers (First Respondent)
File Number(s):	10913 of 2014