D'Arcy v Campbelltown City Council - [2003] NSWLEC 164

Reported Decision: 126 LGERA 401

Land and Environment Court

of New South Wales

CITATION: D'Arcy & Anor v Campbelltown City Council [2003] NSWLEC 164

PARTIES:
APPLICANTS
Vy Ly D'Arcy and Talent Ly D'Arcy
RESPONDENTS
Campbelltown City Council

FILE NUMBER(S): 10897 of 2002

CORAM: Pain J

KEY ISSUES:
Costs :- whether costs should be awarded - whether non legally qualified agent's costs can be recovered - whether Applicants entitled to out of pocket expenses
Practice and Procedure :- council issued order under s 121B of the Environmental Planning and Assessment Act 1979 - applicants appealed against order - council revoked order after proceedings commenced - whether proceedings should be summarily dismissed - whether the applicants could raise the issue of whether compensation is payable under s 121ZL of the Environmental Planning and Assessment Act 1979 at a merits hearing

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 121B, s121ZL
Land and Environment Court Act 1979 s 19(g), s 63, s 69
Legal Profession Act 1987 s 48B, Pt 11 Div 6
Local Government Act 1993 s 181
Practice Direction 1993 par 10
Supreme Court Rules 1970 Pt 13 r 5(1)(a)

CASES CITED: Altomonte v Hunters Hill Council (2002) 120 LGERA 286;
Gardiner v Hornsby Shire Council [2000] NSWLEC 37;
Harvey v Burwood Municipal Council (Bignold J, NSWLEC, 7 May 1993, unreported);
Kekatos v The Council of the Law Society of New South Wales [1999] NSWCA 288;
Kogarah Council v McNicol [2001] NSWLEC 11;
Megna v Drummoyne Municipal Council (Bignold J, NSWLEC, 26 May 1988, unreported) ;
Misra v Campbelltown City Council [No 2] [Costs] (2002) 120 LGERA 115

DATES OF HEARING: 19/05/2003

EX TEMPORE
JUDGMENT DATE :
05/19/2003

LEGAL REPRESENTATIVES:

APPLICANTS
Mr R Bournes (agent)
SOLICITORS
NA
RESPONDENT
Mr A Seton (solicitor)
SOLICITORS
Marsdens Law Group

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10897 of 2002

Pain J

19 May 2003

VY LY D'ARCY and TALENT LY D'ARCY

Applicants

CAMPBELLTOWN CITY COUNCIL

Respondent

Judgment

1. This is a class 1 appeal commenced by the Applicants in relation to an order dated 6 November 2002 (the Order), which was issued by the Respondent, Campbelltown City Council (the Council), under s 121B of the Environmental Planning and Assessment Act 1979 (the EP&A Act). The Council formally revoked the Order on 26 February 2003. The matter before the Court is a Notice of Motion dated 1 April 2003 filed by the Council, seeking an order that the Applicants’ appeal be summarily dismissed. The Applicant also seeks costs. I note that the Council was represented by its solicitor, Mr Seton, and the Applicants by their agent, Mr Bournes.

2. Part 13 r 5(1)(a) of the Supreme Court Rules 1970 which applies in this Court, is relevant if there is no reasonable cause of action disclosed, and is in the following terms:

Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim…

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: [2003] NSWLEC 164
Decision Date: 05/19/2003

CaseChat Overview and Summary

Vy Ly D'Arcy and Talent Ly D'Arcy appealed against an order issued by the Campbelltown City Council under s 121B of the Environmental Planning and Assessment Act 1979. The Council formally revoked the order on 26 February 2003, which was after the Applicants had commenced proceedings. The Council applied for the Applicants’ appeal to be summarily dismissed and for its costs. The Applicants also sought costs. Pain J held that the appeal should be summarily dismissed as there was no reasonable cause of action. The Applicants’ arguments that the proceedings should continue were largely irrelevant to the summary dismissal application. The Applicants were not entitled to seek compensation in these proceedings, as compensation claims must be made in separate class 3 proceedings. The Applicants were also not entitled to their agent's costs because s 69 of the Land and Environment Court Act 1979 allows the Court to award only legal costs incurred in Court proceedings. The Applicants were however entitled to out of pocket expenses as recognised in Kogarah Council v McNicol. The Council's costs of the motion for summary dismissal were to be paid by the Applicants. The substantive proceedings' hearing dates were vacated. The Council was to pay the Applicants' disbursements in the sum of $600. The Applicants were to pay the Council's costs of the hearing of the motion for summary dismissal.

Orders