Fairfield City Council v Mangos - [2004] NSWLEC 689

Land and Environment Court

of New South Wales

CITATION: Fairfield City Council v Mangos and Ors. [2004] NSWLEC 689 revised - 9/12/2004

PARTIES:
APPLICANT:
Fairfield City Council
RESPONDENTS:
Mangos and Ors.

FILE NUMBER(S): 41123 of 2003

CORAM: Bignold J

KEY ISSUES: Costs :- in class 4 proceedings-successful applicant rejecting offer of compromise-procedural defaults by successful party-whether disentitling factors in the exercise of the costs discretion

LEGISLATION CITED: Land and Environment Court Act 1979, s 69

CASES CITED: Calderbank v Calderbank (1975) 3AllER 333;
Messiter v Hutchinson (1987) 10 NSWLR 525

DATES OF HEARING: 26/11/2004

DATE OF JUDGMENT: 12/08/2004

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Thompson, Barrister
SOLICITORS
Ritchie and Castellan
RESPONDENT:
Mr N Bilinsky, Barrister
SOLICITORS
TressCox

JUDGMENT:

- -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

8 December 2004

41123 OF 2003 FAIRFIELD CITY COUNCIL v ANNA MANGOS; ALEX MANGOS; INCY PTY LTD; AAM HOLDINGS (NSW) PTY LTD

1 HIS HONOUR

2 HIS HONOUR: By its Notice of Motion filed 20 September 2004, the Applicant (the Council) seeks an order that the Respondents pay the Applicant’s costs of the proceedings “pursuant to the provisions of Part 11, Rule 5 of the Rules of Court”.

3 The reference to the Rules of Court dealing with costs on a discontinuance of proceedings is obviously an error, since the proceedings were concluded after a contested hearing which raised but one issue, namely whether the use made of premises known as No 206 Cecil Road, Cecil Park “other than its residential usage” was or was not for the prohibited purpose of development as a “transport depot” within the meaning of the Fairfield Local Environmental Plan 1994 (the LEP).

4 In my judgment delivered on 11 June 2004 (see [2004] NSWLEC 298). I declared that the first, second and third Respondents were using or causing to be used the subject premises for the purpose of a “transport depot” within the meaning of the LEP and restrained those Respondents from so using the premises or causing them to be so used. (I granted no relief against the fourth Respondent, which owned the relevant vehicles but leased them to the third Respondent because I held that that mere ownership of the vehicles did not implicate the fourth Respondent in the commission of the unlawful use of the premises).

5 In accordance with the parties’ agreement, I suspended the injunction for the period of three months to provide the opportunity for the transport depot to be relocated elsewhere from the subject premises.

6 The question of costs having been reserved, the Council seeks an order for costs against the Respondents. (Again, the claim made in the Notice of Motion is loosely and erroneously made against the fourth Respondent in respect of which no relief was granted). The Respondents oppose the Council’s claim to a costs order upon two discrete grounds—that costs were unnecessarily incurred in the proceedings—firstly by virtue of initial and repeated…

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.

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Details

Case: [2004] NSWLEC 689
Decision Date: 12/08/2004

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Fairfield City Council filed an application against Mangos and others concerning a breach of local environmental planning regulations. The Council sought to enforce compliance with the Fairfield Local Environmental Plan 1994, which prohibited the use of certain premises for a "transport depot." The respondents opposed the claim, leading to a contested hearing. Ultimately, the court found in favor of the Council, declaring that the respondents were using the premises for the prohibited purpose and restraining them from continuing this use.

The key legal issues before the court were whether the Council, as the successful party, was entitled to costs and, if so, what portion of the costs should be awarded. The respondents argued that the Council should not receive costs because it had incurred unnecessary costs due to procedural defaults and had rejected their offer of compromise. The Council contended that these issues did not disentitle it from receiving costs.

The court considered the procedural defaults by the Council, such as delays in filing points of claim and joining additional respondents, which unnecessarily increased costs. While these defaults were not considered misconduct, they did result in additional costs. The court also examined the offer of compromise made by the respondents. The offer suggested that the proceedings be discontinued, and each party would bear its own costs. The Council rejected this offer, believing it would not provide a satisfactory remedy and would require them to forgo their costs. The court concluded that the respondents' offer did not confer upon the Council everything to which it established its entitlement, and therefore, the Council was not disentitled from its prima facie entitlement to costs. However, the court ordered that the costs awarded should exclude those unnecessarily incurred at interlocutory stages, specifically those related to the joinder of additional respondents and amendments to the originating process.

In conclusion, the court ordered that the first, second, and third respondents pay the Council's costs, excluding those incurred during the interlocutory stages involving the joinder of the third and fourth respondents and related amendments.

Orders