Dobrohotoff v Bennic (No 2)

Case [2013] NSWLEC 139

Land and Environment Court


New South Wales

Medium Neutral Citation: Dobrohotoff v Bennic (No 2) [2013] NSWLEC 139
Hearing dates:20 August 2013
Decision date: 20 August 2013
Jurisdiction:Class 4
Before: Pepper J
Decision:

The orders of the Court are as follows:

(1) the applicants' notice of motion filed 22 May 2013 is dismissed with no order as to costs;

(2) the respondent's notice of motion filed 16 May 2013 is dismissed with no order as to costs;

(3) the respondent is to pay the applicants' costs of the proceedings up to and including 2 May 2013 on an ordinary basis; and

(4) the exhibits are to be returned.

Catchwords: COSTS: whether either party should have their costs paid on an indemnity basis - Calderbank offers served by each party - applicable legal principles - whether offers genuine - whether rejection of offers unreasonable - whether costs should be apportioned - costs payable on an ordinary basis - costs not to be apportioned.
Legislation Cited: Civil Procedure Act 2005, s 98
Environmental Planning and Assessment Act 1979, s 76B
Uniform Civil Procedure Rules 2005, rr 42.1, 42.2
Cases Cited: A&M Green Investments Pty Ltd v Albury City Council (No 2) [2012] NSWLEC 164; (2012) 189 LGERA 217
Al Amanah College Inc v Minister for Education and Training (No 4) [2012] NSWLEC 26
Calderbank v Calderbank [1975] 3 All ER 333
Davies v Sydney Water Corporation (No 2) [2012] NSWLEC 150; (2012) 188 LGERA 451
Dobrohotoff v Bennic [2013] NSWLEC 61
Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
SWM Financial Services Pty Ltd v Lloyd (No 2) [2012] NSWSC 202
Technology Leasing Ltd v Lennmar Pty Ltd (No 2) [2012] FCA 1216
Category:Costs
Parties: John Dobrohotoff (First Applicant)
Rosemary Dobrohotoff (Second Applicant)
Rhonda Louise Bennic (Respondent)
Representation: Mr J Lazarus (Applicants)
Ms K Millist-Spendlove (Respondent)
Conditsis Lawyers (Applicants)
The Law Company (Respondent)
File Number(s):40145 of 2013

EX TEMPORE Judgment

The Parties Seek Their Costs On An Indemnity Basis

  1. In Dobrohotoff v Bennic [2013] NSWLEC 61, Dr John Dobrohotoff and Mrs Rosemary Dobrohotoff ("the Dobrohotoffs"), the applicants in the proceedings, were, with the exception of their application for leave to amend the summons, successful in obtaining the relief they sought against the respondent, Ms Rhonda Bennic. Accordingly, in addition to the Court granting declaratory and injunctive relief, the Court ordered Ms Bennic to pay the Dobrohotoffs' costs of the proceedings unless some other form of costs order was sought by way of notice of motion (at [100]).

  1. Both parties have now sought a different form of costs order, relying principally on written offers to settle the proceedings served prior to the two day hearing commencing on 23 April 2013.

  1. Having regard to the applicable legal principles and the terms of the various offers served by the parties, in my opinion the…

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AGLC
Dobrohotoff v Bennic (No 2) [2013] NSWLEC 139
Case
[2013] NSWLEC 139
Decision Date

CaseChat Overview and Summary

In the case of Dobrohotoff v Bennic (No 2), the applicants sought to have the respondent's notice of motion dismissed, and the respondent sought to have the applicants' notice of motion dismissed. The case was heard in the Supreme Court of Victoria. The dispute revolved around the procedural aspects of the litigation, including the applications for dismissal and the associated costs orders.

The central legal issues before the court were the interpretation of the procedural rules governing the dismissal of notices of motion and the allocation of costs in such circumstances. Specifically, the court had to determine whether the applicants' motion was properly brought and whether the respondent's motion was justified. Additionally, the court needed to decide the appropriate costs order in light of the procedural history of the case.

The court considered the procedural history and the submissions made by both parties. It concluded that neither notice of motion was properly brought, as both were made without the necessary procedural steps being taken. Consequently, both notices of motion were dismissed. The court also found that the respondent should bear the costs of the proceedings up to a certain date due to the procedural missteps made by the applicants. The court dismissed the motions with no order as to costs and directed that the respondent pay the applicants' costs up to a specified date on an ordinary basis. The exhibits were to be returned to the parties.

Orders

Orders of the court

The orders of the Court are as follows:

(1) the applicants' notice of motion filed 22 May 2013 is dismissed with no order as to costs;

(2) the respondent's notice of motion filed 16 May 2013 is dismissed with no order as to costs;

(3) the respondent is to pay the applicants' costs of the proceedings up to and including 2 May 2013 on an ordinary basis; and

(4) the exhibits are to be returned.

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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