Diamond v Birdon Contracting Pty Limited

Land and Environment Court

of New South Wales

CITATION:

Diamond & Anor v Birdon Contracting Pty Limited & Anor [2007] NSWLEC 92

PARTIES:

FIRST APPLICANT:
Neville Diamond

SECOND APPLICANT:
Mark Richardson

FIRST RESPONDENT:
Birdon Contracting Pty Limited

SECOND RESPONDENT:
Hawkesbury City Council

FILE NUMBER(S):

40900 of 2006

CORAM:

Lloyd J

KEY ISSUES:

Costs :- security for costs - relevant principles

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 123
Land and Environment Court Act 1979 s 63

CASES CITED:

KP Cable Investments Pty Ltd v Meltglow Pty Limited (1995) 56 FCR 189;
Melville v Craig Nowlan & Associates Pty Ltd (2002) 54 NSWLR 82

DATES OF HEARING:

07/11/2006

EX TEMPORE JUDGMENT DATE:

7 November 2006

LEGAL REPRESENTATIVES:

FIRST APPLICANT:
N Diamond in person
SOLICITORS:
N/A

SECOND APPLICANT:
N/A

FIRST RESPONDENT:
J J Webster SC and A M Pickles (barrister)
SOLICITORS:
Russell C Byrnes

SECOND RESPONDENT:
N/A

JUDGMENT:

- 6 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Tuesday, 7 November 2006

LEC No. 40900 of 2006

DIAMOND & ANOR v BIRDON CONTRACTING PTY LIMITED & ANOR [2007] NSWLEC 92

EX TEMPORE JUDGMENT

1 HIS HONOUR: The first respondent Birdon Contracting Pty Limited, applies by notice of motion for an order for security for costs in relation to proceedings brought by the applicants relating to a sand mining operation conducted on land at Singleton Road, Colo Heights (Tinda Park). The proceeding are brought under s 123(1) of the Environmental Planning and Assessment Act 1979, which enable any person to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, whether or not any right of that person has been or may be impinged by or as a consequence of that breach. The applicants allege that the sand mining operation is being conducted unlawfully.

2 The first applicant, Mr Neville Diamond who appears in person, is an undischarged bankrupt. He says that he has the written authority of the second applicant, Mr Mark Richardson, to appear as his agent. There is no evidence before me, however, of any written authorisation by Mr Richardson as required by s 63 of the Land & Environment Court Act 1979. Accordingly I must assume that Mr Diamond only represents himself.

3 There is evidence from the first respondent’s solicitor, Mr Gregory Miles of Russell C Byrnes solicitors, giving an estimate of the first respondent’s costs of the proceedings. In his affidavit sworn on 12 October 2006, Mr Miles sets out his estimate of these costs as follows:

6. It is my opinion that if this matter were to proceed to trial the days involved in the hearing would be at least 4 or more days and a days [sic] view. I have been instructed to engage Senior Counsel and a junior and I estimate the costs of preparation and hearing will exceed $40,000 for my client alone.

7. In making the above assessment I have estimated Senior Counsel’s fees at…