Drake v Randwick City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Drake v Randwick City Council [2021] NSWLEC 97

Hearing dates:

On the papers

Date of orders:

16 September 2021

Decision date:

16 September 2021

Jurisdiction:

Class 1

Before:

Moore J

Decision:

See orders at [33]

Catchwords:

COSTS - Class 1 strata subdivision appeal - strata subdivision appeal contingent on successful outcome in Class 1 dual occupancy (attached) development appeal - development appeal unsuccessful - strata subdivision appeal necessarily dismissed as a consequence - Respondent applies for costs of day of strata subdivision appeal addressing jurisdictional issues - no determination of jurisdictional issues - inappropriate to conduct hypothetical determination of jurisdictional issues in strata subdivision appeal - no basis to award Respondent costs for jurisdictional hearing day.

COSTS - costs of costs applications in Class 1 ordinarily follow the event - no basis to depart from that principle - Respondent pay Applicant’s costs of Class 1 costs application

Legislation Cited:

Civil Procedure Act 2005, s 98

Land and Environment Court Rules 2007, r 3.7

Randwick Local Environmental Plan 2012, cl 4.1A

Uniform Civil Procedure Rules 2005, r 42.1

Cases Cited:

Albert Square NSW Pty Ltd v Randwick City Council [2021] NSWLEC 1401

Drake v Randwick City Council [2021] NSWLEC 98

Grant v Kiama Municipal Council [2006] NSWLEC 70

Kelly v Randwick City Council; Drake v Randwick City Council [2021] NSWLEC 68

Port Stephens Council v Sansom (2007) 156 LGERA 125; [2007] NSWCA 299

Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Category:

Costs

Parties:

Lea Drake (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
Mr P Tomasetti SC (Applicant) (Respondent on costs application)
Mr M Astill, barrister (Respondent) (Applicant on costs application)

Solicitors:
Mr C Kelly (Applicant) (Respondent on costs application)
Randwick City Council (Respondent) (Applicant on costs application)

File Number(s):

38001 of 2021

Publication restriction:

No

TABLE OF CONTENTS

Introduction

The present costs application

Introduction

The Class 1 Notice of Motion

The affidavit in support of the motion

Determination of the costs applications on the papers

Costs in Class 1 proceedings

The costs determination process

Introduction

The Council's submissions

The submissions for Ms Drake

The Council's submissions in reply

Consideration

Costs

Orders

Judgment

Introduction

1. On 7, 8 and 9 June 2021, I heard two Class 1 development appeals concerning proposed development which had been refused by Randwick City Council (the Council). The first of them concerned an application by Mr Craig Kelly seeking development consent for the construction of a dual occupancy (attached) at 27 Adams Avenue, Malabar (the site). The second merit appeal was a contingent one brought by Ms Lea Drake, a co‑owner of the site with Mr Kelly, seeking consent to strata subdivide Mr Kelly's proposed dual occupancy (attached), assuming that development consent was granted for that project.

2. On 2 July 2021, I delivered my decision in these two Class 1 appeals. In the appeal brought by Mr Kelly, I determined that his proposed dual occupancy…