Chin v Lane Cove Council (No 3)

[2009] NSWLEC 1196

Land and Environment Court

of New South Wales

CITATION:

Chin v Lane Cove Council (No 3) [2009] NSWLEC 1196

PARTIES:

APPLICANT
Pinky Fung Ling Chin

RESPONDENT
Lane Cove Council

FILE NUMBER(S):

10073 of 2008

CORAM:

Hoffman AC

KEY ISSUES:

MODIFICATION APPLICATION :- Notice of Motion seeking a costs order and deferral of the date for compliance with orders issued by the Court.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

DATES OF HEARING:

26 May 2009

EX TEMPORE JUDGMENT DATE:

26 May 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr L Chin, agent

RESPONDENT
Ms K Law (Solicitor)
SOLICITOR
Matthews Folbigg

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Acting Commissioner Hoffman

26 May 2009

10073 of 2008 PINKY FUNG LING CHIN v LANE COVE COUNCIL

This decision was given extemporaneously.

It has been revised and edited prior to publication.

JUDGMENT

1 COMMISSIONER: This was a Notice of Motion by the applicant in appeal 10073 of 2008 through the agent, Mr Larri Chin, seeking a costs order and a deferral of the date for compliance with orders issued by the Court, originally on 12 September 2008, subsequently modified on 22 April 2009.

2 The applicant said it seeks the legal costs and the cost of the landscape work for removal of the concrete and the revegetation of the area therefore exposed.

3 As a Commissioner of the Court there is no power to deal with the question of costs and, in fact, the parties have a call-over before the Registrar on 12 June 2009 for that matter to be further considered.

4 The second order regarding the deferral of the compliance date is a matter I can deal with. The words of the notice of motion are:

“Order 2. Interlocutory, no commencement of any landscape work until a resolution is reached on costs in favour of the applicant.”

5 The respondent opposed that notice of motion on several bases. Perhaps the most relevant is the final wording of the notice of motion which presumes that there may be a decision on costs in favour of the applicant. It would appear from the wording of the motion that if there is no order at least, for costs to, be shared between the applicant and the respondent that there would be no work at all done. That would be contrary to the orders in their original intent. Therefore I could not agree to that.

6 During the hearing the parties agreed on alternative wording for the Notice of Motion that the respondent could support, that being the words become: “2. Order 2 in the orders of 22 April 2009, the first bullet point, related to the date of the orders of 22 April 2009, that date be deleted and substituted with the date of 26 May 2009”. That will provide Mr Chin with 60 days from today’s date for compliance.

7 Therefore the Orders of the Court are:

1. The second item in the Notice of Motion filed on 12 May 2009 was modified at the Hearing and agreed by the parties, and is granted as follows:
2. Order 2 of the Judgment dated 22 April 2009 (that modified the Judgment of 12 September 2008) is further modified by the deletion of the words in Order 2 and the insertion of the following: “Order 2 the first bullet point related to the DATE of the Order shall delete the matter “22nd April 2009” and substitute for it the date “26 May 2009”.

___________________

K Hoffman
Acting Commissioner of the Court
ajl/ljr