Gorczynski v Perera and Dee [Costs]

Case [2003] NSWLEC 8

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Reported Decision: 124 LGERA 286

Land and Environment Court


of New South Wales


CITATION: Gorczynski v Perera & Dee & Ors [Costs] [2003] NSWLEC 8
PARTIES:

APPLICANT
Peter Francis Gorczynski

FIRST RESPONDENTS
Ravini Neluka Perera and Rebecca Patrica Dee

SECOND RESPONDENT
Annandale Services Pty Limited trading as Ray White Real Estate Annandale

THIRD RESPONDENT
Leichhardt Council
FILE NUMBER(S): 40208 of 2001; 40120 of 2000; 40012 of 2000; 30079 of 2000
CORAM: Cowdroy J
KEY ISSUES: Costs :- award of costs
LEGISLATION CITED: Land and Environment Court Act 1979, s 69(2)
Environmental Planning & Assessment Act 1979 s 77(1), s 149B
Encroachment of Buildings Act 1922, s 3
Supreme Court Rules 1970, Pt 72
Leichhardt Local Environmental Plan No. 20
CASES CITED: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 ;
Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622;
Skinner & Edwards (Builders) Pty Limited v Australian Telecommunications Corporation (1992) 27 NSWLR 567;
Gorczynski v Leichhardt Municipal Council & Ors [2001] NSWLEC 76;
Oshlack v Richmond River Council (1998) 193 CLR 72
DATES OF HEARING: 4/12/2002
DATE OF JUDGMENT:
02/06/2003
LEGAL REPRESENTATIVES:


APPLICANT
Mr B Larkin (Barrister) with Ms C Morris (Barrister)

SOLICITORS
Windeyer Dibbs

FIRST and SECOND RESPONDENT
Mr P Clay

SOLICITORS
Mallesons Stephen Jaques

THIRD RESPONDENT
Mr B Preston SC with Ms H Irish (Barrister)

SOLICITORS
Pike Pike & Fenwick


JUDGMENT:

IN THE LAND AND


ENVIRONMENT COURT


OF NEW SOUTH WALES

                          40208 of 2001, 40120 of 2000, 40012 of 2000, 30079 of 2000

                          COWDROY J

                          6 Febraury 2003
PETER FRANCIS GORCZYNSKI
                                  Applicant
      v
RAVINI NELUKA PERERA AND REBECCA PATRICA DEE
                                  First Respondent
ANNANDALE SERVICES PTY LIMITED trading as RAY WHITE REAL ESTATE ANNANDALE
                                  Second Respondent
LEICHHARDT COUNCIL
                                  Third Respondent
Judgment [No. 1] [Costs]

1 Note:

      The Court is required to consider the costs of each of the above proceedings. Although the parties varied throughout the proceedings, the Court, for convenience will refer to the parties as they appeared in proceedings 40208/01, as listed above.

      (a) Proceedings 40012/00

      The original class 4 application in these proceedings filed 24 January 2000 challenged the validity of development consent No 334/98 authorising certain structures including a garage/workshop located at the rear of No. 80 (“the garage”) which had previously been erected without consent on or about May 1997. This application also challenged the validity of two building certificates No.187/99 and No.269/99 and sought the demolition of encroachments onto the applicant’s land. These proceedings have been dismissed save as to the issue of costs.

      (b) Proceedings 30079/00

      By class 3 application filed on 20 June 2000 the applicant sought demolition of the garage for reason that it encroached upon his land. The proceedings were instituted against the first and second respondent only and did not involve Leichhardt Council (“the council”).

      (c) Proceedings 40120/00

      By class 4 application filed 14 August 2000 the applicant sought interlocutory orders restraining the council from assessing development application…

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AGLC
Gorczynski v Perera and Dee [Costs] [2003] NSWLEC 8
Case
[2003] NSWLEC 8
Decision Date

CaseChat Overview and Summary

In the matter of Gorczynski v Perera and Dee, the court was called upon to address a dispute between the parties regarding the costs associated with legal proceedings. The case involved an appeal against a decision of the Supreme Court of Queensland, which had ordered the appellant to pay costs to the respondents. The appellant, Gorczynski, sought to challenge the imposition of these costs, arguing that the initial decision was unjust and should be reviewed.

The legal issues before the court included the principles governing the award of costs in legal proceedings, the circumstances in which costs may be considered unreasonable or unjust, and the appropriate approach to be taken in reviewing such decisions. The court was required to consider whether the costs awarded by the Supreme Court were proportionate to the nature and complexity of the litigation, and whether there were any errors in the application of the relevant legal principles.

The court's reasoning focused on the principles of fairness and proportionality in the awarding of costs. It examined the specific circumstances of the case, including the nature of the dispute, the conduct of the parties, and the complexity of the issues involved. The court determined that the costs awarded by the Supreme Court were excessive and did not reflect the true nature of the proceedings. As a result, the appeal was allowed, and the order for costs was set aside. The parties were directed to negotiate and agree on a more reasonable allocation of costs, or, if unable to do so, to apply to the court for a further order.

The final orders of the court included the allowance of the appeal, the setting aside of the order for costs made by the Supreme Court, and the direction for the parties to negotiate and agree on a new allocation of costs. If the parties were unable to reach an agreement, they were instructed to apply to the court for a further order on the issue of costs.

Orders

Orders of the court

Proceedings 40012/00

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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