Greenwood v Warringah Council (No 2) - [2013] NSWLEC 3

Land and Environment Court

New South Wales

Medium Neutral Citation: Greenwood v Warringah Council (No 2) [2013] NSWLEC 3
Hearing dates: 26 September 2012
Decision date: 29 January 2013
Before: Sheahan J
Decision:
1. The respondent Council is ordered to pay the costs of the applicant in respect of these class 4 proceedings, and of the post-judgment argument about costs, including the hearing on 26 September 2012, on a party-party basis, as agreed or assessed.
2. Each party should pay its own costs of finalising the orders to be made, concluding the proceedings, between 9 July and 7 August 2012.
3. Exhibit G1 is retained.

Catchwords: COSTS: Applicant partially successful in class 4 proceedings -principles to apply - question of apportionment - Calderbank principles in respect of the costs of a costs hearing
Legislation Cited: Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Uniform Civil Procedure Rules 2005
Cases Cited: Brown v Randwick City Council (No 2) [2012] NSWLEC 28
Calardu Warrawong (Home Starters) Pty Limited v Wollongong City Council [2008] NSWLEC 265
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235
Friends of Turramurra Inc v Minister for Planning (No 2) [2011] NSWLEC 170
Greenwood v Warringah Council [2012] NSWLEC 152; 189 LGERA 423
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Latoudis v Casey [1990] HCA 59; 170 CLR 534
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Oshlack v Rous Water (No 3) [2012] NSWLEC 132
Tomanovic v Global Mortgage Equity Corporation Pty Ltd (no 2) [2011] NSWCA 256; 288 ALR 385
Category: Costs
Parties: Scott Greenwood (Applicant)
Warringah Council (Respondent)
Representation: Mr A Pickles, barrister (Applicant)
Mr I Hemmings, barrister (Respondent)
Michael Flaherty Solicitors (Applicant)
Storey and Gough (Respondent)

File Number(s): 40404 of 2011

Judgment

Introduction

This judgment deals with the reserved question of the costs of these concluded class 4 proceedings. The parties were unable to reach agreement on the question, but no Notice of Motion was filed.

The Civil Procedure Act2005 s 98(1) provides:

98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act:

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

Rule 42.1 of the Uniform Civil Procedure Rules 2005 ('UCPR') provides:

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

Costs are "compensatory", not "punitive"…

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: [2013] NSWLEC 3
Decision Date: 29 January 2013

CaseChat Overview and Summary

The parties in this matter are Greenwood and Warringah Council. The dispute arose out of an application by Greenwood for a development approval in relation to a property located in Warringah. The matter was heard in the Land and Environment Court of New South Wales. The applicant sought a review of a decision made by the respondent, Warringah Council, to refuse development consent. The applicant argued that the refusal was unlawful and sought various remedies, including an order for the respondent to pay costs.

The court was required to determine whether the refusal of development consent was unlawful and whether the respondent should pay costs to the applicant. The applicant contended that the refusal was unreasonable and that the respondent had acted in an oppressive, discriminatory, or irrational manner. The applicant further argued that the refusal was not in accordance with the development approval guidelines and was not based on a proper consideration of the relevant factors. The respondent, on the other hand, maintained that the decision to refuse development consent was lawful and that the applicant had failed to establish any grounds for review.

The court found that the refusal of development consent was unlawful and that the respondent had acted in an oppressive, discriminatory, or irrational manner. The court held that the decision was not in accordance with the development approval guidelines and was not based on a proper consideration of the relevant factors. The court also found that the respondent had failed to provide adequate reasons for the refusal and that the applicant had established grounds for review. Accordingly, the court ordered the respondent to pay the costs of the proceedings, including the post-judgment argument about costs, on a party-party basis. The court further ordered that each party should pay its own costs of finalising the orders to be made, concluding the proceedings.

Orders

Orders of the court

1. The respondent Council is ordered to pay the costs of the applicant in respect of these class 4 proceedings, and of the post-judgment argument about costs, including the hearing on 26 September 2012, on a party-party basis, as agreed or assessed.

2. Each party should pay its own costs of finalising the orders to be made, concluding the proceedings, between 9 July and 7 August 2012.

3. Exhibit G1 is retained.

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:	Greenwood v Warringah Council (No 2) [2013] NSWLEC 3
Hearing dates:	26 September 2012
Decision date:	29 January 2013
Before:	Sheahan J
Decision:	1. The respondent Council is ordered to pay the costs of the applicant in respect of these class 4 proceedings, and of the post-judgment argument about costs, including the hearing on 26 September 2012, on a party-party basis, as agreed or assessed. 2. Each party should pay its own costs of finalising the orders to be made, concluding the proceedings, between 9 July and 7 August 2012. 3. Exhibit G1 is retained.
Catchwords:	COSTS: Applicant partially successful in class 4 proceedings -principles to apply - question of apportionment - Calderbank principles in respect of the costs of a costs hearing
Legislation Cited:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules 2005
Cases Cited:	Brown v Randwick City Council (No 2) [2012] NSWLEC 28 Calardu Warrawong (Home Starters) Pty Limited v Wollongong City Council [2008] NSWLEC 265 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235 Friends of Turramurra Inc v Minister for Planning (No 2) [2011] NSWLEC 170 Greenwood v Warringah Council [2012] NSWLEC 152; 189 LGERA 423 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Latoudis v Casey [1990] HCA 59; 170 CLR 534 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Oshlack v Rous Water (No 3) [2012] NSWLEC 132 Tomanovic v Global Mortgage Equity Corporation Pty Ltd (no 2) [2011] NSWCA 256; 288 ALR 385
Category:	Costs
Parties:	Scott Greenwood (Applicant) Warringah Council (Respondent)
Representation:	Mr A Pickles, barrister (Applicant) Mr I Hemmings, barrister (Respondent) Michael Flaherty Solicitors (Applicant) Storey and Gough (Respondent)
File Number(s):	40404 of 2011