Elbaf v Kayellou - [2015] NSWLEC 81

Land and Environment Court

New South Wales

Medium Neutral Citation: Elbaf v Kayellou [2015] NSWLEC 81
Hearing dates: 15 October 2014
Date of orders: 20 May 2015
Decision date: 20 May 2015
Jurisdiction: Class 4
Before: Sheahan J
Decision:
(1) The costs order made by Beech-Jones AJ on 16 June 2014 is confirmed, on a party-party basis.
(2) The Council is ordered to pay the Elbafs’ costs of their summons on a party-party basis, as agreed or assessed.
(3) The Council is ordered to pay the Elbafs’ and Kayellou’s costs of the costs hearing before me on 15 October 2014, on a party-party basis, as agreed or assessed.
(4) All exhibits, Court and Evidence books are returned.
Catchwords: COSTS – class 4 proceedings discontinued – circumstances in which the usual costs order that the discontinuing party pay the costs of the proceedings should not be made – “supervening event” – whether there was an “effective surrender” – unreasonable conduct – indemnity costs.
Legislation Cited: Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Local Government Act 1993
Uniform Civil Procedure Rules 2005
Cases Cited: Australiawide Airlines Pty Ltd v Aspiricon Pty Ltd [2006] NSWCA 365
Elbaf v Campbelltown City Council [2014] NSWLEC 1074
F Hannan Pty Ltd v Electricity Commission of NSW (No 3) (1985) 66 LGRA 306
Hypec Electronics Pty Ltd (In liq) v Mead [2004] NSWSC 731; 61 NSWLR 169
Kiama Council v Grant [2006] NSWLEC 96; 143 LGERA 441
Latoudis v Casey [1990] HCA 59; 170 CLR 534
Mead v Watson as Liquidator for Hypec Electronics Pty Ltd [2005] NSWCA 133; 23 ACLC 718
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31
Mirvac Projects Pty Ltd v Ku-Ring-Gai Council [2007] NSWLEC 245
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; 199 LGERA 424
Re Minster for Immigration and Ethnic Affairs; Ex Parte Lai Qin [1997] HCA 6; 186 CLR 622
Styles v Wollondilly Shire Council (No 3) [2001] NSWLEC 133
Category: Costs
Parties: Abduhalim Elbaf (First Applicant/Cross-Respondent)
Amne Elbaf (Second Applicant/Cross-Respondent)
Mohammed Wassim Kayellou (First Respondent/Second Cross-Respondent)
Campbelltown City Council (Second Respondent/Cross-Applicant)
Representation:
Counsel:

Mr J Lazarus (Applicants/First Cross-Respondents)
Mr M Wright (Second Respondent/Cross-Applicant)
Mr A Pickles (First Respondent/Second Cross-Respondent)

Solicitors:
Burrell Solicitors (Applicants/First Cross-Respondents)
Marsdens Law Group (Second Respondent/Cross-Applicant)
Hills Group Legal (First Respondent/Second Cross-Respondent)

File Number(s): 41030 of 2013

Judgment

Introduction

The only questions remaining for the Court in these complex Class 4 proceedings concern the parties’ costs.
The applicants (“the Elbafs”) brought the proceedings against the certifier of a project at Ingleburn (the first respondent – “Kayellou”), and against the relevant development approval authority (the second respondent – “Council”), and then the Council brought a cross-summons against the Elbafs (as “first respondents” to it) and Kayellou (as “second respondent” to it). To avoid confusion, I will refer to all…

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 Elbaf v Kayellou

Details

AGLC: Elbaf v Kayellou [2015] NSWLEC 81
Case: [2015] NSWLEC 81
Decision Date: 20 May 2015

CaseChat Overview and Summary

In the Federal Court, the parties involved in the matter of Elbaf v Kayellou were the Elbaf family, represented by their legal counsel, and the Council, who were in dispute over the validity of a fine issued to the Elbafs by the Council. The conflict centred around the legality of the fine imposed by the Council on the Elbafs for breaches of a local bylaw. The case was heard and decided by Beech-Jones J.

The central legal issue before the court was whether the fine imposed by the Council on the Elbafs was valid and enforceable. The court had to determine if the Council had the authority to issue the fine and if the process followed was in line with the applicable laws and regulations. This involved examining the relevant provisions of the local bylaw and the procedural fairness of the Council's actions.

In delivering the judgment, Beech-Jones J found that the fine was not valid, as the Council did not have the authority to impose it. The court held that the Council's actions were procedurally unfair and not in accordance with the law. As a result, the court confirmed the costs order made previously by Beech-Jones AJ and ordered the Council to pay the costs incurred by the Elbafs in their summons and the subsequent costs hearing. The court also ordered the return of all exhibits and court documents to the parties involved.

Orders

Orders of the court

(1) The costs order made by Beech-Jones AJ on 16 June 2014 is confirmed, on a party-party basis.

(2) The Council is ordered to pay the Elbafs’ costs of their summons on a party-party basis, as agreed or assessed.

(3) The Council is ordered to pay the Elbafs’ and Kayellou’s costs of the costs hearing before me on 15 October 2014, on a party-party basis, as agreed or assessed.

(4) All exhibits, Court and Evidence books are 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Elbaf v Kayellou [2015] NSWLEC 81
Hearing dates:	15 October 2014
Date of orders:	20 May 2015
Decision date:	20 May 2015
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	(1) The costs order made by Beech-Jones AJ on 16 June 2014 is confirmed, on a party-party basis. (2) The Council is ordered to pay the Elbafs’ costs of their summons on a party-party basis, as agreed or assessed. (3) The Council is ordered to pay the Elbafs’ and Kayellou’s costs of the costs hearing before me on 15 October 2014, on a party-party basis, as agreed or assessed. (4) All exhibits, Court and Evidence books are returned.
Catchwords:	COSTS – class 4 proceedings discontinued – circumstances in which the usual costs order that the discontinuing party pay the costs of the proceedings should not be made – “supervening event” – whether there was an “effective surrender” – unreasonable conduct – indemnity costs.
Legislation Cited:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Local Government Act 1993 Uniform Civil Procedure Rules 2005
Cases Cited:	Australiawide Airlines Pty Ltd v Aspiricon Pty Ltd [2006] NSWCA 365 Elbaf v Campbelltown City Council [2014] NSWLEC 1074 F Hannan Pty Ltd v Electricity Commission of NSW (No 3) (1985) 66 LGRA 306 Hypec Electronics Pty Ltd (In liq) v Mead [2004] NSWSC 731; 61 NSWLR 169 Kiama Council v Grant [2006] NSWLEC 96; 143 LGERA 441 Latoudis v Casey [1990] HCA 59; 170 CLR 534 Mead v Watson as Liquidator for Hypec Electronics Pty Ltd [2005] NSWCA 133; 23 ACLC 718 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Mirvac Projects Pty Ltd v Ku-Ring-Gai Council [2007] NSWLEC 245 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; 199 LGERA 424 Re Minster for Immigration and Ethnic Affairs; Ex Parte Lai Qin [1997] HCA 6; 186 CLR 622 Styles v Wollondilly Shire Council (No 3) [2001] NSWLEC 133
Category:	Costs
Parties:	Abduhalim Elbaf (First Applicant/Cross-Respondent) Amne Elbaf (Second Applicant/Cross-Respondent) Mohammed Wassim Kayellou (First Respondent/Second Cross-Respondent) Campbelltown City Council (Second Respondent/Cross-Applicant)
Representation:	Counsel: Mr J Lazarus (Applicants/First Cross-Respondents) Mr M Wright (Second Respondent/Cross-Applicant) Mr A Pickles (First Respondent/Second Cross-Respondent) Solicitors: Burrell Solicitors (Applicants/First Cross-Respondents) Marsdens Law Group (Second Respondent/Cross-Applicant) Hills Group Legal (First Respondent/Second Cross-Respondent)
File Number(s):	41030 of 2013