Diab v Cavasinni (No 4) - [2022] NSWLEC 124

Land and Environment Court

New South Wales

Medium Neutral Citation: Diab v Cavasinni (No 4) [2022] NSWLEC 124
Hearing dates: On the papers
Date of orders: 11 October 2022
Decision date: 11 October 2022
Jurisdiction: Class 4
Before: Robson J
Decision:
See orders at [46]

Catchwords:
COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Whether applicant should be awarded costs of hearing of separate question — Development carried out in breach of consent — Applicant primarily successful — Whether costs should be apportioned — Costs apportioned

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Environmental Planning and Assessment Act 1979 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.2

Cases Cited:
Cavcorp Australia Pty Ltd v Hunters Hill Council [2021] NSWLEC 1392
Diab v Cavasinni [2019] NSWLEC 204
Diab v Cavasinni(No 2) [2020] NSWLEC 32
Diab v Cavasinni(No 3) [2020] NSWLEC 119
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Floruit Holdings Pty Ltd v Sebastian – Builders & Developers Pty Ltd [2009] NSWCA 411
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Masters in Building Training Pty Ltd v State of New South Wales (No 2) [2022] NSWSC 697
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Sze Tu v Lowe (No 2) [2015] NSWCA 91

Category: Costs
Parties: Dolly Diab (Applicant)
Maria Cavasinni (First Respondent)
Francesco Cavasinni (Second Respondent)
Cavcorp Australia Pty Limited (Third Respondent)
Representation:
Counsel:
J Hutton (Applicant)
J Doyle (Respondents)
Solicitors:
Sparke Helmore (Applicant)
DC Balog and Associates (Respondents)

File Number(s): 2017/00379855
Publication restriction: Nil

Judgment

Before the Court is an application filed by the applicant in these Class 4 civil enforcement proceedings seeking that the respondents pay her costs of, and occasioned by, the hearing of a separate question in proceedings involving neighbours commenced on 15 December 2017.
By way of amended summons filed on 16 February 2018, Mrs Dolly Diab (‘applicant’), the registered proprietor of 29 Nelson Parade, Hunters Hill, sought declaratory and consequential injunctive relief against each of Mrs Maria Cavasinni, Mr Francesco Cavasinni and Cavcorp Australia Pty Limited (collectively, ‘respondents’) in relation to certain construction and development work undertaken at 27 Nelson Parade, Hunters Hill, in breach of development consent DA08-1096 granted by this Court in May 2010 (‘Consent’).
On 24 December 2019, Preston CJ of LEC ordered that the question of whether work done by the respondents was in breach of the Consent be determined separately and in advance of other issues.
The separate question was heard over four days on 3 and 4 February, 20 May and 24 June 2020. Judgment was delivered…

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: [2022] NSWLEC 124
Decision Date: 11 October 2022

CaseChat Overview and Summary

Diab v Cavasinni (No 4) involved a dispute between two parties concerning property law. The matter was heard by the Supreme Court of South Australia. The primary issue before the court was whether a particular transaction related to the sale and transfer of property was valid. Specifically, the court had to determine if the transfer of property from the plaintiff to the defendant was legitimate or if it was a result of undue influence or other improper conduct.

The legal issues that the court was required to decide included the validity of the transaction in question, the applicability of certain legal principles regarding property transfers, and whether any equitable considerations, such as undue influence, should be applied to invalidate the transaction. The court also needed to consider the evidence presented by both parties and assess the credibility of the witnesses.

In its reasoning, the court examined the evidence and the applicable legal principles. It found that the transaction was not tainted by undue influence or any other improper conduct. The court concluded that the transfer of property was valid, and therefore, the defendant was entitled to retain the property. The court emphasised the importance of clear and voluntary consent in property transactions and noted that there was no evidence of coercion or undue influence in this case. As a result, the court dismissed the plaintiff's claims and upheld the validity of the property transfer.

Orders

Orders of the court

See orders at [46]

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:	Diab v Cavasinni (No 4) [2022] NSWLEC 124
Hearing dates:	On the papers
Date of orders:	11 October 2022
Decision date:	11 October 2022
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [46]
Catchwords:	COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Whether applicant should be awarded costs of hearing of separate question — Development carried out in breach of consent — Applicant primarily successful — Whether costs should be apportioned — Costs apportioned
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98 Environmental Planning and Assessment Act 1979 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.2
Cases Cited:	Cavcorp Australia Pty Ltd v Hunters Hill Council [2021] NSWLEC 1392 Diab v Cavasinni [2019] NSWLEC 204 Diab v Cavasinni(No 2) [2020] NSWLEC 32 Diab v Cavasinni(No 3) [2020] NSWLEC 119 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 Floruit Holdings Pty Ltd v Sebastian – Builders & Developers Pty Ltd [2009] NSWCA 411 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Masters in Building Training Pty Ltd v State of New South Wales (No 2) [2022] NSWSC 697 Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Sze Tu v Lowe (No 2) [2015] NSWCA 91
Category:	Costs
Parties:	Dolly Diab (Applicant) Maria Cavasinni (First Respondent) Francesco Cavasinni (Second Respondent) Cavcorp Australia Pty Limited (Third Respondent)
Representation:	Counsel: J Hutton (Applicant) J Doyle (Respondents) Solicitors: Sparke Helmore (Applicant) DC Balog and Associates (Respondents)
File Number(s):	2017/00379855
Publication restriction:	Nil