J&D Butland v M&J Cole - [1995] NSWLEC 9

Land and Environment Court

of New South Wales

CITATION: HOLROYD CITY COUNCIL v. JOHN SAHYOUN No. 40177 of 1995 [1995] NSWLEC 9 (2 February 1995) [1995] NSWLEC 1

PARTIES: HOLROYD CITY COUNCIL v. JOHN SAHYOUN

FILE NUMBER(S): 40177 of 1995

CORAM: Bignold J

KEY ISSUES: :- Class 4 proceedings claiming interlocutory and permanent injunctions.
Council successful in obtaining mandatory order in interlocutory proceedings and in accepting Respondent's undertakings in lieu of prohibitory injunction.
Outstanding question of costs.
Held: Council entitled to its costs as the successful party except for costs unnecessarily incurred

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING: 1 February 1995

DATE OF JUDGMENT:
02/02/1995

LEGAL REPRESENTATIVES:
Mrs J. Kelly (Barrister)
First and Second Respondents Dr S. C. Churches (Barrister)

JUDGMENT:

Bignold J: These are class 4 proceedings commenced by the Council on 3 October 1995 when it obtained ex parte mandatory and prohibitory injunctions against the Respondents in respect of activities undertaken on a development project at premises known as Nos 36-40 Newman Street, Merrylands, in which the only outstanding issue is a question concerning certain costs incurred in the proceedings, which were effectively concluded on 7 November 1995 when the Applicant accepted certain undertakings offered by the Respondents in lieu of the permanent prohibitory injunction claimed in the originating process. In addition to these undertakings, the Applicant had also been successful in obtaining the mandatory order against the Respondents made by me on 4 October 1995 .

In the light of these outcomes, the proceedings have been effectively concluded, save for the outstanding question concerning certain costs incurred in the proceedings. It is obvious that the Council has been entirely successful in the proceedings and would normally be expected to obtain the usual order for its costs, following the result of class 4 proceedings. However, because certain costs orders have been previously made at various stages in the proceedings, namely on 4 October 1995 when I ordered the Respondents to pay the Applicants' costs of the proceedings (which in context, necessarily would be confined to the interlocutory proceedings) and on 5 December 1995 when the Registrar ordered the Respondents to pay the Applicants' costs of attendances on 28 November 1995 and 5 December 1995 which took place before the Registrar, the outstanding issues of costs have focussed particular attention upon costs incurred in connection with other particular occasions when the parties have been before the Court, namely on 11 and 16 October 1995 when the matter was brought before me by the Council alleging that the Respondents had not complied with the mandatory order I had made on 4 October 1995 and on 31 October 1995 and 7 November 1995 when the matter was before the Registrar.

In respect of the costs incurred on these particular appearances before the Court, the Council claims its costs in respect of all occasions whereas the Respondents claim their costs in respect of the appearances on 11 and 16 October 1995 and submit that there should be no order as to…

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: [1995] NSWLEC 9
Decision Date: 02/02/1995

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of J&D Butland v M&J Cole involved a dispute regarding a development project at premises on Newman Street, Merrylands. The primary concern was whether the defendants had complied with a mandatory order issued by the court. The court had to decide whether the defendants had adequately addressed the issues raised by the plaintiff regarding the excavation on the development site and its impact on the neighbouring property. The case also addressed the issue of costs incurred by the parties during the proceedings.

The central legal issues the court had to address were the enforcement of the mandatory order issued on October 4, 1995, and the subsequent costs incurred by both parties during the litigation process. The primary focus was on whether the defendants had complied with the mandatory order and whether the plaintiff had unnecessarily incurred costs by bringing the matter back to court on multiple occasions. The court also had to determine the appropriate costs order for the proceedings, considering the successful outcome for the plaintiff.

Bignold J concluded that the plaintiff was successful in obtaining the mandatory order and the defendants' undertakings, effectively concluding the proceedings. The court determined that the plaintiff had unnecessarily incurred costs by bringing the matter back to court on October 11 and 16, 1995, as the defendants had not complied with the mandatory order by that time. However, the court found that the plaintiff was not entitled to costs for the appearance on October 31, 1995, due to an inadvertent failure to inform the defendants of the callover date. The court made an overall costs order, substituting previous costs orders, requiring the defendants to pay the plaintiff's costs of the proceedings except for those incurred on the specified dates.

The court made several orders to conclude the case. The application was dismissed by consent due to the defendants' undertakings. The previous costs orders made on October 4 and December 5, 1995, were vacated. The defendants were ordered to pay the plaintiff's costs of the proceedings, except for costs incurred on October 11, 16, and 31, 1995. No costs were ordered for the hearing on February 1, 1996. The exhibits were to be returned to the parties.

Orders