Dash v Gosford City Council

[1988] NSWLEC 139

Land and Environment Court

of New South Wales

CITATION:

Dash & Anor v Gosford City Council & Ors [1988] NSWLEC 139

PARTIES:

APPLICANT
Dash & Anor

RESPONDENT
Gosford City Council & Ors

FILE NUMBER(S):

40166 of 1988

CORAM:

Bignold J

KEY ISSUES:

:-

LEGISLATION CITED:

Local Government Act, 1919

CASES CITED:

Cousins v. Warringah Shire Council (1985)

DATES OF HEARING:

DATE OF JUDGMENT:

09/28/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: The Respondents who successfully resisted the Applicant's claim for interlocutory relief seek an order for costs in respect of the hearing of the Applicant's Motion on 30th August, 1988 which was dismissed on 31st August, 1988 for the reasons published in my judgment of that date.

The Applicant opposes any order for costs and submits that costs of the hearing on the Motion for interlocutory relief should be costs in the cause.

In the case of the 2nd Respondent the Applicant submits that no order for costs should be made since no interlocutory relief was sought against the 2nd Respondent.

In the case of the 1st Respondent the Applicant submits that I should regard its conduct as in effect bringing on itself the proceedings for interlocutory relief in a manner that disentitles it to its costs.

In my opinion there are no special or exceptional circumstances in the present case that would justify or require a departure from the usual costs order in class 4 proceedings that costs follow the event.

I do not regard the 1st Respondent's conduct (through its solicitors) informing the Applicant that it intended to certify the approved plan at the expiration of 7 days from the date of its letter (ie 23rd August, 1988) as involving any impropriety in the conduct of the litigation that was then on foot. The relevant history of correspondence between the Applicant and the 1st Respondent is detailed in my judgment (pp.8-10). Although it is clear that it was the aforesaid letter from the 1st Respondent's solicitor dated 23rd August, 1988 that prompted the Applicant to file his Motion seeking interlocutory relief (in the originating application filed on 8th August, 1988 no interlocutory relief was sought) it cannot be concluded that the 1st Respondent was guilty of any misconduct in the proceedings that might in accordance with established principle operate to disentitle it as the successful party to its costs.

Speaking generally where proceedings have been commenced asserting invalidity of the grant of development consent, the consent authority should not be expected, in the absence of an appropriate interlocutory order by the Court, to 'freeze' or stay action necessarily consequential on the grant of development consent. In the present case having granted development consent and approval under Part XII of the Local Government Act 1919 to the subdivision of the 2nd Respondent's land it was natural and entirely appropriate that the 1st Respondent, faced with the legal challenge (which it had resolved to defend), but not enjoined by interlocutory injunction, to decide to perfect its decisions by releasing the linen plan of subdivision appropriately certified. Any other course eg voluntarily staying action would have been likely to be inimical to good and proper public administration of the State's planning laws, as well as unfair to the 2nd Respondent who had obtained the requisite consent and approval for the subdiv

ision of his land.

Accordingly the Applicant must pay the costs of the 1st Respondent of the hearing of the Applicant's motion for interlocutory relief.

The 2nd Respondent's claim for costs is more tenuous because no interlocutory relief was claimed against him.

However the 2nd Respondent was served with a copy of the Applicant's motion claiming interlocutory injunctions against the 1st Respondent just a day or two before the Motion came on for urgent hearing on 30th August, 1988. On that occasion Counsel representing the 2nd Respondent without objection from the Applicant (see p.13 of my earlier judgment) appeared to oppose the grant of interlocutory injunctions.

Although as it turned out Counsel for the 2nd Respondent basically adopted the arguments advanced by Counsel for the 1st Respondent he did make additional submissions on the balance of convenience (although because of the lack of earlier notice of the Applicant's Motion no affidavits were filed on behalf of the 2nd Respondent).

Having regard to (i) the urgency of the situation, (ii) the lack of opportunity to know that the Applicant's claim for interlocutory injunction would be resisted by the 1st Respondent with the same vigour and protecting the same interest as the 2nd Respondent had in the outcome of the action which interest was clearly imperilled by the Applicant's Motion, (iii) the obvious interest of the 2nd Respondent in the litigation and (iv) the lack of objection raised by the Applicant to the 2nd Respondent's participation in the hearing of the Motion for interlocutory relief I think it only fair and just that the 2nd Respondent also receive its costs on the hearing of the Motion.

The matters I have referred to distinguish the present case from Cousins v. Warringah Shire Council (unreported 28th June, 1985) where the present Chief Judge held it not reasonable to require the unsuccessful applicant on the hearing of the substantive action to pay two sets of costs and made an order for costs in favour of the successful Council but no order in favour of the successful land-owner in respect of the hearing of the action (although orders were made in her favour in respect of certain interlocutory proceedings eg her application for joinder etc).

Accordingly I order the Applicant to pay the costs of the 1st and 2nd Respondents incurred in connection with the hearing of the Applicant's Motion for Interlocutory relief.