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Farah v Warringah Council

Farah v Warringah Council

Case [2006] NSWLEC 544 30 August 2006

Development Consent

Costs

Apportionment of Costs

Planning & Development Law

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Land and Environment Court

of New South Wales

CITATION: Farah, A and Farah, S v Warringah Council and KSSLZ#13 Pty Limited and Ward, T and Ward, M [2006] NSWLEC 544

PARTIES:
APPLICANTS
Anwar Farah
Susan Farah
FIRST RESPONDENT
Warringah Council
SECOND RESPONDENT
KSSLZ#13 Pty Limited
THIRD RESPONDENTS
Tom Ward
Mary Ward

FILE NUMBER(S): 41107 of 2005

CORAM: Talbot J

KEY ISSUES: Costs :- special order apportioning costs.

CASES CITED: Forster v Farquhar (1893) QB 564;
Cretazzi v Lombardi (1975) 13 SASR 4;
Hughes v Western Australian Cricket Association Incorporated and Others (1986) ATPR 40;
Proprietors of SP 133318 and SP 13555 v Lavender View Regency Pty Limited and North Sydney Council (unreported No. 40015A of 1996, 6 June 1997);
Lesnewski v Mosman Municipal Council & Anor (No.2) (2004) 135 LGERA 359;
Willoughby City Council v Randall Pty Limited t/as Monkey Bar Car Park [2005] NSWLEC 622;
Latoudis v Casey (1990) 170 CLR 534;
Oshlack v Richmond River Council (1998) 193 CLR 72;
Smith v Madden (1946) 73 CLR 129;
Mok v The Minister for Immigration (No2) (1993) 47 FCR 81;
Centro Properties Limited v Hurstville City Council & Anor [2004] NSWLEC 718;
Sanders v Snell (No2)(2000) 174 ALR 53;
Jamal v The Department of Health and Secretary of the Department of Health and Anor (1988) 14 NSWLR 252;
Beoco Limited v Alfa Laval Company Limited and Anor [1994] 4 All ER 464;
Cutcliffe v Lithgow City Council [2006] NSWLEC 463

DATES OF HEARING: 17/08/2006

DATE OF JUDGMENT:
08/30/2006

LEGAL REPRESENTATIVES: APPLICANTS
Mr M Seymour (barrister)
SOLICITORS
Elias, Gates & Associates
FIRST RESPONDENT
Mr A Galasso (barrister)
SOLICITORS
Wilshire Webb
SECOND RESPONDENT
Mr P Tomasetti (barrister)
SOLICITORS
Henry Davis York
THIRD RESPONDENTS
submitting
SOLICITORS
Walker Hedges & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

30 August 2006

41107 of 2005 Anwar Farah and Susan Farah v Warringah Council and KSSLZ#13 Pty Limited and Tom Ward and Mary Ward
JUDGMENT

1 Talbot J: By judgment published 26 April 2006 I made a declaration that a development consent granted by the council in respect of the property known as 723 Warringah Road, Forestville in relation to development application No. 2003/09/09 is void and of no effect and a consequential order to the effect that the second and third respondents as the applicants for development consent and the owner of the land respectively be restrained from acting on the consent.

2 The Court has formally noted an agreement between the applicants and the first respondent that each of those parties bears their own costs of the proceedings. The applicants are the owners of the property immediately adjoining the land the subject of the grant of the development consent and their property shares a common driveway and mutual rights of way with the subject property.

3 The applicants were essentially unsuccessful in respect of any issues raised by them in the original points of claim. The proceedings were…

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 Farah v Warringah Council

Details

AGLC: Farah v Warringah Council [2006] NSWLEC 544
Case: [2006] NSWLEC 544
Decision Date: 30/08/2006

CaseChat Overview and Summary

The Land and Environment Court of New South Wales presided over by Talbot J heard the case of Farah v Warringah Council. The applicants, Anwar Farah and Susan Farah, sought to challenge the validity of a development consent granted by the Warringah Council. The respondents included Warringah Council and KSSLZ#13 Pty Limited, with Tom Ward and Mary Ward also named as respondents. The applicants contested the development consent on multiple grounds, including non-compliance with the Environmental Planning and Assessment Act 1979, inadequate consideration of traffic impacts, lack of finality in the council's decision, denial of procedural fairness, and infringement on their proprietary rights. The applicants were successful only on the ground that the council failed to determine the development application with the required certainty and finality.

The legal issues before the court primarily revolved around the allocation of costs and the discretionary power of the court to apportion costs in cases where a party is partially successful. The second respondent argued for a costs order that would require the applicants to pay its costs, while the applicants contended that costs should follow the event, compensating the successful party. The court had to consider whether the applicants' failure on certain issues warranted a special costs order and how to appropriately apportion costs between the parties.

In its judgment, the court acknowledged the principle that a successful party who has failed on certain issues may be deprived of its own costs and may even be ordered to pay the opponent's costs. The court noted the complicated and convoluted nature of the pleadings and the significant impact on the proceedings due to the applicants' amendments. Despite the applicants' failure on several key issues, the court decided against a complete costs order in favor of the second respondent. Instead, the court opted for a proportional allocation of costs, taking into account the agreement between the applicants and the first respondent that each bear their own costs and the minimal participation of the third respondents. The court ordered that the second respondent pay half of the applicants' costs related to the successful issue and that the applicants pay the second respondent's costs for the unsuccessful issues. Both parties were also ordered to bear their own costs related to the hearing on costs.

This decision underscores the court's discretionary approach in apportioning costs, balancing fairness and the necessity to address the significant impact of unsuccessful issues on the proceedings. The court's ruling provides a nuanced solution, reflecting the complexity of the case and the varying degrees of success for the applicants.

Orders