Legal Research
Cases
Cutcliffe v Lithgow City Council

Cutcliffe v Lithgow City Council

Case [2006] NSWLEC 463

Standing

Judicial Review

Natural Justice & Procedural Fairness

Abuse of Process

Compensatory Damages

Admissibility of Evidence

Administrative Law

Planning & Development Law

No judgment structure available for this case.

Type to search within this case.

Reported Decision: (2006) 147 LGERA 330

Land and Environment Court

of New South Wales

CITATION: Cutcliffe v Lithgow City Council [2006] NSWLEC 463

PARTIES:
APPLICANTS:
Brian Edward Cutcliffe and
Jill Cutcliffe
FIRST RESPONDENT:
Lithgow City Council
SECOND RESPONDENTS:
Garry Allan Dukes and
Wendy Ann Dukes

FILE NUMBER(S): 40181 of 2005

CORAM: Biscoe J

KEY ISSUES: Costs :- where applicant has obtained declaration of invalidity of a council development consent - where applicant seeks and obtains costs only against submitting council and not against developer who defended – whether council entitled to contribution to those costs from developer – whether developer entitled to recover its costs from council -whether council’s submitting appearance and pleaded defence unreasonable – general costs guidelines.

LEGISLATION CITED: Land and Environment Court Act 1979 (NSW) s 69
Land and Environment Court Rules 1996 Pt 6 r 1

CASES CITED: Australian Securities and Investments Commission v Rich (2004) 50 ACSR 500;
Belongil Progress Association Inc v Byron Shire Council [2000] NSWLEC 118;
BMI Ltd v Federated Clerk’s Union of Australia (NSW) Branch (1983) 51 ALR 401;
Corporate Affairs Commission of NSW v Transphere Pty Ltd (1988) 15 NSWLR 596;
De Haas v Williams (2004) 132 LGERA 195;
Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47;
El Deeb v Magistrates Court of South Australia (1999) 72 SASR 596;
Emory University v Biochem Pharma Inc (1998) 86 FCR 1;
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748;
Kiama Council v Grant (2006) 143 LGERA 441;
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 268;
KJD York Management Services Pty Ltd v City of Sydney Council [2006] NSWLEC 218;
Kumar v Mitchell (1991) 32 FCR 190;
Lactos Fresh Pty Ltd v Finishing Services Pty Ltd (No 2) [2006] FCA 748;
Latoudis v Casey (1990) 170 CLR 534;
Metzger v Department of Health and Social Security [1977] 3 All ER 444;
Oshlack v Richmond River Council (1998) 193 CLR 72;
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 3) (1987) 77 ALR 609;
Parkes Developments Pty Limited v Cambridge Credit Corporation Limited (1974) 33 LGRA 196 ;
Proprietors of SP 13318 and SP 13555 v Lavender View Regency Pty Ltd and North Sydney Council (unreported 6 June 1987, LEC/NSW);
R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739;
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13;
Rushcutters Bay Smash Repairs v H McKenna Netmakers [2002] NSWSC 670;
Scott v Wollongong City Council (1992) 75 LGRA 112;
Sidney Harrison Pty Ltd v City of Tea Tree Gully (No 2) (2001) 112 LGERA 327;
Trust Co of Australia Ltd v Perpetual Trustees WA Ltd (1995) 36 NSWLR 654

DATES OF HEARING: 06/07/2006

DATE OF JUDGMENT:
08/02/2006

LEGAL REPRESENTATIVES:
APPLICANT:
Mr P Clay, barrister
SOLICITORS
McIntosh McPhillamy & Co
FIRST RESPONDENT:
Mr A Hawkes, solicitor
SOLICITORS
Pike Pike and Fenwick
SECOND RESPONDENTS:
Mr…

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 Cutcliffe v Lithgow City Council

Details

AGLC: Cutcliffe v Lithgow City Council [2006] NSWLEC 463
Case: [2006] NSWLEC 463
Decision Date: 02/08/2006

CaseChat Overview and Summary

In Cutcliffe v Lithgow City Council, the applicants, Brian and Jill Cutcliffe, sought a declaration that two development consents granted by the Lithgow City Council to Garry and Wendy Dukes were invalid, and an injunction to prevent the Dukes from relying on those consents. The Council filed a submitting appearance except as to costs, while the Dukes actively defended the proceedings. The applicants were successful in their claims, and the Council did not participate in the hearing. The applicants sought costs from the Council, but not from the Dukes. The Council argued that the applicants should not be awarded costs because they had delayed in bringing proceedings and had not raised a claim of invalidity before commencing the action. The Council also sought an order that the Dukes contribute to the costs it would be liable to pay the applicants. The Dukes sought an order that the Council pay their costs. The Court held that the applicants were entitled to an award of costs against the Council. Although the Council had filed a submitting appearance, it had actively defended the proceedings until shortly before the hearing, and the applicants had succeeded largely due to the Council's errors. The Court also held that the Dukes should contribute to the costs the Council was liable to pay the applicants, as the Council's error was the cause of the litigation, and the Dukes had chosen to defend the proceedings. The Court formulated guidelines for the exercise of its discretion to order costs in similar cases.

Orders