Eather v Mosman Municipal Council

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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…

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Details
Case
[2012] NSWLEC 92
Decision Date

CaseChat Overview and Summary

The matter before the court was a dispute between Mrs Eather and Mosman Municipal Council concerning the council's decision to refuse her an application to vary the use of a property. The case was heard in the Supreme Court of New South Wales. Mrs Eather sought an order for the council to reconsider her application, as well as an order for the council to pay her costs.

The court was required to determine whether the council's decision to refuse Mrs Eather's application was legally sound and whether the council had acted unreasonably or irrationally in doing so. Additionally, the court had to consider whether Mrs Eather was entitled to an order for the council to pay her costs.

In its judgment, the court found that the council's decision to refuse Mrs Eather's application was not unreasonable or irrational. The court held that the council had properly exercised its discretion in accordance with the relevant legislation and policy. As such, the court dismissed Mrs Eather's application and ordered that the proceedings be discontinued. The court also ordered that Mrs Eather pay 25% of the council's costs of the proceedings and that the council pay 75% of Mrs Eather's costs of the motions.

Orders

Orders of the court

(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.

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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