Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Dillon v Gosford City Council [2011] NSWCA 328 Hearing dates: 21 July 2011 Decision date: 26 October 2011 Before: Basten JA at 1;
Macfarlan JA at 84;
Handley AJA at 85Decision: (1) Allow the appeal against the order for the costs of the second stage of the proceedings in the Land and Environment Court, but otherwise dismiss the appeal.
(2) Set aside order (9) made in the Land and Environment Court on 16 September 2010 and in lieu thereof direct that each party bear their and its own costs of the proceedings not covered by other orders.
(3) Order that the appellants pay two-thirds of the respondent's costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: APPEAL - challenge to costs order - appeal involving bona fide challenge to other orders in addition to costs order - whether leave required - whether existing practice of court in accordance with authority in other jurisdictions - Land and Environment Court Act 1979 (NSW), s 57(4)
COSTS - valuation proceedings - no presumption that costs follow the event - principle that claimant for compensation who has acted reasonably in commencing and maintaining proceedings recover costs
ENVIRONMENT AND PLANNING - compulsory acquisition of interest in land - easement for construction of levee - assessment of market value - assessment of claim for disturbance - apportionment of cost of scour protection works - Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 55(f)
REAL PROPERTY - principles governing construction of easement - principles applicable where easement constitutes interest in land subject to compulsory acquisitionLegislation Cited: Civil Procedure Act 2005 (NSW), s 98
Conveyancing Act 1919 (NSW), Pt 7, Sch 4A
District Court Act 1973 (NSW), s 127
Land and Environment Court Act 1979 (NSW), s 57
Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 3, 8, 42, 54, 59
Local Government Act 1993 (NSW), ss 51, 55, 59A, 191A, 733
Supreme Court Act 1970 (NSW), s 101, 127
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 36.17, 42.1, Sch 1Cases Cited: Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd [2011] NSWCA 128
Banno v Commonwealth of Australia (1993) 45 FCR 32
Clissold v Perry [1904] HCA 12; 1 CLR 363
De L v Director-General, New South Wales Department of Community Services [No 2] [1997] HCA 14; 190 CLR 207
Halley v Minister Administering the Environmental Planning and Assessment Act 1979 (No 3) [2011] NSWLEC 94
Mabo v Queensland [No 2] [1992] HCA 23; 175 CLR 1
Miltonbrook…
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- Case
- [2011] NSWCA 328
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether leave to appeal was required for the challenge to the costs order, given that the appeal also involved a bona fide challenge to other substantive orders, and whether the Land and Environment Court's existing practice regarding costs in valuation proceedings was consistent with established authority. The court also considered the principles governing the construction of easements and their impact on compulsory acquisition, as well as the principles for awarding costs in valuation proceedings, specifically the presumption that a claimant for compensation who has acted reasonably in commencing and maintaining proceedings should recover their costs.
The Court of Appeal determined that leave to appeal was not required for the challenge to the costs order because the appeal involved a genuine challenge to other orders in addition to the costs order. The court found that the primary judge erred in their costs order for the second stage of the proceedings, as it did not adequately reflect the reasonableness of the appellants' conduct. Consequently, the appeal was allowed in part, with the costs order for the second stage being set aside and replaced with an order that each party bear their own costs for those proceedings. The court also made specific orders regarding the costs of the appeal itself.
Orders
Orders of the court
(1) Allow the appeal against the order for the costs of the second stage of the proceedings in the Land and Environment Court, but otherwise dismiss the appeal.
(2) Set aside order (9) made in the Land and Environment Court on 16 September 2010 and in lieu thereof direct that each party bear their and its own costs of the proceedings not covered by other orders.
(3) Order that the appellants pay two-thirds of the respondent's costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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