Halliday v Filmlock Pty Limited - [2007] NSWLEC 477

Land and Environment Court

of New South Wales

CITATION: Halliday v Filmlock Pty Limited and Ors [2007] NSWLEC 477

PARTIES:
APPLICANT
Austin Michael Halliday
FIRST RESPONDENT
Filmlock Pty Limited
SECOND RESPONDENT
Jakesam Developments Pty Limited
THIRD RESPONDENT
Andcorp Pty Limited
FOURTH RESPONDENT
JGT Investments Pty Limited
FIFTH RESPONDENT
Gosford City Council
SIXTH RESPONDENT
John Robar Boring Contractors Pty Limited

FILE NUMBER(S): 40159 of 2006

CORAM: Pain J

KEY ISSUES: Costs :- civil enforcement - extra-curial settlement - no hearing on merits - each party ordered to pay its own costs

LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 15 r 7
Land and Environment Court Act 1979 s 69

CASES CITED: Belmore Residents’ Action Group Inc v Canterbury City Council (2006) 147 LGERA 226;
Centro Properties Pty Limited v Hurstville City Council and Ors [2006] NSWLEC 78;
Cutcliffe & Anor v Lithgow City Council & Ors (2006) 147 LGERA 330;
Hayden Theatres v Penrith Council (1999) 105 LGERA 230;
Kiama Council v Grant (2006) 143 LGERA 441;
One.Tel Ltd & Ors v Commissioner of Taxation (2000) 101 FCR 548;
Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia and Anor; Ex Parte Lai Quin (1997) 186 CLR 622

DATES OF HEARING: 26 July 2007

EX TEMPORE JUDGMENT DATE: 26 July 2007

LEGAL REPRESENTATIVES:
APPLICANT
S Berveling
SOLICITOR
Conditsis & Associates
FIRST, SECOND, THIRD AND FOURTH RESPONDENTS
A Pickles
SOLICITOR
Kernans Lawyers
FIFTH RESPONDENT
M Fraser
SOLICITOR
PJ Donnellan & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

26 July 2007

40159 of 2006 Halliday v Filmlock Pty Limited and Ors
EX TEMPORE JUDGMENT

1 Her Honour: The Applicant commenced Class 4 proceedings seeking the declaration of invalidity of a development consent issued by the Council and an order restraining use of that consent. Points of Claim and defences were filed, affidavits filed and hearing dates were allocated on 8 and 9 March 2007. These were vacated by consent on 28 February 2007. No further order was made and the Applicant has not filed a notice of discontinuance. The Applicant seeks his costs today and otherwise states that as he does not wish to proceed with the matter it can be dismissed. The Council has also filed a “defensive” motion seeking an order that its costs be paid.

2 The Applicant relied on two affidavits of Mr Dawson and the exhibits to those were tendered. An extensive history of the matter and relevant documents were referred to and are reflected in the chronology in the Applicant’s counsel’s submissions at par 3 which appears below, adding that there was a Deed entered into by the Applicant and the First, Second Third and Fourth Respondents in February 2007.

Date	Event
11 May 2005	The Council received Development Application No. 27526 of 2005 (‘the First DA’) for a residential flat building
1 November 2005	The First DA was the subject of a Report to the Council (

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 Halliday v Filmlock Pty Limited

Details

AGLC: Halliday v Filmlock Pty Limited [2007] NSWLEC 477
Case: [2007] NSWLEC 477
Decision Date: 26 July 2007

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Austin Michael Halliday initiated proceedings against Filmlock Pty Limited and others, challenging a development consent issued by Gosford City Council. Halliday sought a declaration of invalidity of the development consent and an order restraining its use. The matter proceeded with points of claim and defences being filed, and affidavits exchanged. However, the scheduled hearing dates were vacated by consent, and no further orders were made. Halliday subsequently sought his costs, while the Council filed a defensive motion for its costs.

The central legal issue before the court was whether any party was entitled to costs given the settlement reached extra-curially by Halliday and the respondents. Halliday argued for his costs on the basis of an effective surrender by the respondents, satisfaction of his claim, and the Council's failure to consider draft SEPP 1. The Council, however, contended that no order for costs should be made as the supervening settlement removed the subject matter of the dispute, and the proceedings had not reached a hearing on the merits.

Pain J, in delivering the judgment, noted that the settlement between Halliday and the respondents resulted in the resolution of the substantive dispute. The court considered the principles laid out in Kiama Council v Grant and concluded that no order for costs should be made as the settlement removed the subject matter of the dispute. The court also found that there was no clear indication that Halliday was almost certain to succeed on the merits if the matter had proceeded to trial. Consequently, Pain J determined that each party should bear its own costs, rejecting the notion that Halliday should pay the Council's costs for commencing proceedings that ultimately did not proceed to a hearing on the merits.

In summary, the court dismissed Halliday's application, made no order as to costs in the substantive proceedings, and rejected the Council's motion for costs. Halliday was ordered to pay the respondents' costs of the hearing on costs. The exhibits were to be returned.

Orders