Dowling v Haralambides - [2015] NSWLEC 173

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Dowling v Haralambides [2015] NSWLEC 173
Hearing dates: 12 October 2015
Date of orders: 05 November 2015
Decision date: 05 November 2015
Jurisdiction: Class 4
Before: Craig J
Decision:
1. Pursuant to r 12.1(1)(b) of the Uniform Civil Procedure Rules 2005 I give leave to the applicant to file a notice of discontinuance in respect of the whole of these proceedings.

2. Direct that the applicant file a notice of discontinuance in the Registry within 7 days.

3. Order that the respondents pay the applicant’s costs of these proceedings.

4. Order that the respondents pay the applicant’s costs of the notice of motion dated 20 July 2015.
5. Exhibits may be returned.
Catchwords: COSTS – leave to discontinue Class 4 proceedings – validity of complying development certificate – development consent granted by Court conditionally upon surrender of complying development certificate – application for alternative costs order – r 42.19(2) Uniform Civil Procedure Rules 2005 – applicant bears onus of persuading the Court that some other order is appropriate – applicant achieved practical success – applicant acted reasonably in commencing proceedings –respondent acted unreasonably prior to and after proceedings commenced – costs order in favour of applicant
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW)
Land and Environment Court Act 1979 (NSW)
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Calderbank v Calderbank [1975] 3 All ER 333
Foukkare v Angreb Pty Ltd [2006] NSWCA 335
Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; 186 CLR 622
Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; 199 LGERA 424
Category: Costs
Parties: Martin Dowling (Applicant)
John Haralambides (First Respondent)
Caroline Haralambides (Second Respondent)
Peter Boyce (Third Respondent)
Representation:
Counsel:
M Heath (Applicant)
N Eastman (First and Second Respondents)
No appearance (Third Respondent)
Solicitors:
Hicksons Lawyers (Applicant)
Gadens Lawyers (First and Second Respondents)
No appearance (Third Respondent)

File Number(s): 40283 of 2014

Judgment

Disputes between neighbours resulting in litigation are always unfortunate. The more so where, as in this case, the foundation to the dispute has been resolved without the necessity for adjudication by the Court but liability for the costs of the proceedings remains in contest.
By a summons issued on 2 May 2014, Martin Dowling sought a declaration to the effect that a complying development certificate dated 6 August 2013 was invalid and that any building work carried out pursuant to that certificate be restrained unless authorised by the grant of development consent. The complying development certificate purported to authorise substantial alterations and additions to a dwelling in de Milhau Road, Hunters Hill (the Property). The Property is owned by John…

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.

Continue reading Dowling v Haralambides

Details

AGLC: Dowling v Haralambides [2015] NSWLEC 173
Case: [2015] NSWLEC 173
Decision Date: 05 November 2015

CaseChat Overview and Summary

The case of Dowling v Haralambides involved the applicant seeking leave to discontinue the proceedings against the respondents. The applicant, Mr Dowling, sought to discontinue the entire action and filed a notice of motion on 20 July 2015. The case was heard in the Supreme Court of New South Wales, General Division. The legal issues at hand were whether the applicant was entitled to discontinue the proceedings and, if so, what orders should be made in relation to costs and other matters.

The court considered the relevant legal principles concerning the power of the court to allow a party to discontinue proceedings. The court noted that while parties generally have the right to discontinue their proceedings, the court may impose conditions or make orders in relation to costs. In this case, the court found that the applicant was entitled to discontinue the proceedings. The court also considered the appropriate orders in relation to costs, taking into account the conduct of the parties and the circumstances of the case. The court found that the respondents should pay the applicant’s costs of the proceedings and the notice of motion, given the applicant’s decision to discontinue the action.

The court ordered that the applicant file a notice of discontinuance within 7 days and that the respondents pay the applicant’s costs. The court also noted that exhibits could be returned. This decision provides guidance on the court’s discretion in allowing a party to discontinue proceedings and the potential orders that may be made in relation to costs.

Orders

Orders of the court

1. Pursuant to r 12.1(1)(b) of the Uniform Civil Procedure Rules 2005 I give leave to the applicant to file a notice of discontinuance in respect of the whole of these proceedings.

2. Direct that the applicant file a notice of discontinuance in the Registry within 7 days.

3. Order that the respondents pay the applicant’s costs of these proceedings.

4. Order that the respondents pay the applicant’s costs of the notice of motion dated 20 July 2015.

5. Exhibits may be returned.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Dowling v Haralambides [2015] NSWLEC 173
Hearing dates:	12 October 2015
Date of orders:	05 November 2015
Decision date:	05 November 2015
Jurisdiction:	Class 4
Before:	Craig J
Decision:	1. Pursuant to r 12.1(1)(b) of the Uniform Civil Procedure Rules 2005 I give leave to the applicant to file a notice of discontinuance in respect of the whole of these proceedings. 2. Direct that the applicant file a notice of discontinuance in the Registry within 7 days. 3. Order that the respondents pay the applicant’s costs of these proceedings. 4. Order that the respondents pay the applicant’s costs of the notice of motion dated 20 July 2015. 5. Exhibits may be returned.
Catchwords:	COSTS – leave to discontinue Class 4 proceedings – validity of complying development certificate – development consent granted by Court conditionally upon surrender of complying development certificate – application for alternative costs order – r 42.19(2) Uniform Civil Procedure Rules 2005 – applicant bears onus of persuading the Court that some other order is appropriate – applicant achieved practical success – applicant acted reasonably in commencing proceedings –respondent acted unreasonably prior to and after proceedings commenced – costs order in favour of applicant
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) Land and Environment Court Act 1979 (NSW) State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Uniform Civil Procedure Rules 2005
Cases Cited:	Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365 Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 Calderbank v Calderbank [1975] 3 All ER 333 Foukkare v Angreb Pty Ltd [2006] NSWCA 335 Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; 186 CLR 622 Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; 199 LGERA 424
Category:	Costs
Parties:	Martin Dowling (Applicant) John Haralambides (First Respondent) Caroline Haralambides (Second Respondent) Peter Boyce (Third Respondent)
Representation:	Counsel: M Heath (Applicant) N Eastman (First and Second Respondents) No appearance (Third Respondent) Solicitors: Hicksons Lawyers (Applicant) Gadens Lawyers (First and Second Respondents) No appearance (Third Respondent)
File Number(s):	40283 of 2014