Eather v Mosman Municipal Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Eather v Mosman Municipal Council [2012] NSWLEC 92

Decision date:

01 May 2012

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

(1) the proceedings are discontinued;

(2) Mrs Eather is to pay 25% of the council's costs of the proceedings; and

(3) the council is to pay 75% of Mrs Eather's costs of the motions.

Catchwords:

COSTS: who should pay costs upon discontinuance of the proceedings upon negotiated settlement - operation of r 42.19 of the UCPR - no hearing on the merits - no surrender - whether a supervening event removed or modified the subject-matter of the proceedings leaving only the issue of costs - conduct of the parties during the preparation of the proceedings

Legislation Cited:

Civil Procedure Act 2005, s 98
Environmental Planning and Assessment Act 1979, s 101
Uniform Civil Procedure Rules 2005, r 42.19

Cases Cited:

Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Fordyce v Fordham [2006] NSWCA 274; (2006) 67 NSWLR 497
Prodromos Anastasi Foukkare v Angreb Pty Limited [2006] NSWCA 335
Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441
Latoudis v Casey [1990 HCA 59]; (1990) 170 CLR 534
ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548

Category:

Procedural and other rulings

Parties:

Julian Eather (Applicant)
Mosman Municipal Council (First Respondent)
Richard Madden (Second Respondent)
Rosamond Wood (Third Respondent)

Representation:

Mr I Hemmings (Applicant)
Mr J Lazarus (First Respondent)
Diamond Conway Lawyers (Applicant)
Pikes Lawyers (First Respondent)

File Number(s):

40212 of 2011

Ex Tempore Judgment

The Applicant Discontinues Judicial Review Proceedings Following Settlement With Other Parties

1. These proceedings, at a substantive level, concern a judicial review challenge to a decision made by the first respondent, Mosman Municipal Council ("the council"), on 7 October 2010 to grant development consent in respect of a development application concerning premises in Mosman owned by the second and third respondents. The applicant, Mrs Julian Eather, owns the adjoining property.

1. The gravamen of the dispute between the parties was the position of an inclinator and the materials to be used in its construction. As initially approved by the council, the inclinator was to pass directly in front of the master bedroom of Mrs Eather, thereby impacting upon her privacy. Mrs Eather was not able to object to the development application during the period of notification. The negative impact on the amenity of Mrs Eather was exacerbated by the fact that the side of the inclinator was to be a translucent material thereby permitting the occupants of the inclinator to look directly into Mrs Eather's bedroom.

1. As pleaded in the points of claim, there were four grounds upon which the consent was claimed to be invalid by Mrs Eather:

(a) an alleged failure to notify the development application in accordance with the Notification Development Control Plan;

(b) an alleged denial of…