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Janssen v Qureshi

Janssen v Qureshi

Case [2022] NSWLEC 39 14 April 2022

Costs

Stay of Proceedings

Return of Exhibits

Civil Litigation & Procedure

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Land and Environment Court

New South Wales

Medium Neutral Citation: Janssen v Qureshi [2022] NSWLEC 39
Hearing dates: 29 March 2022
Date of orders: 14 April 2022
Decision date: 14 April 2022
Jurisdiction: Class 4
Before: Pain J
Decision:
The Court orders:
(1) The Applicants must pay the Respondents’ costs of the discontinued proceedings as agreed or assessed on a party-party basis.
(2) The Applicants must pay the Respondents’ costs of the costs proceedings as agreed or assessed on a party-party basis.
(3) The exhibits are to be returned.

Catchwords:
COSTS – party-party costs payable following proceedings being discontinued by consent except for costs

Legislation Cited:
Civil Procedure Act 2005, ss 56, 98
Environmental Planning and Assessment Act 1979 (NSW), s 6.32
Government Information (Public Access) Act 2009 (NSW)

Cases Cited:
1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685
Ansted v Northern Beaches Council [2021] NSWLEC 136
Colgate-Palmolive Co v Cussons Pty ltd (1993) 46 FCR 225; [1993] FCA 801
House of Peace Pty Ltd & v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44
Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147
K&M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202
Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96
King, Markwick, Taylor & Ors v Bathurst Regional Council (2006) 150 LGERA 362; [2006] NSWLEC 505
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Category: Costs
Parties: Brett Miles Janssen (First Applicant)
Morna Alexa Lynch (Second Applicant)
Maureen Murukhi Qureshi (First Respondent)
Christopher Michael Qureshi (Second Respondent)
Tiana McSevney (Third Respondent)
Representation:
Counsel:
M Harker (Applicants, Respondents on the motion)
L Robb Vujcic (Respondents, Applicants on the motion)
Solicitors:
Kardos Scanlan (Applicants, Respondents on the motion)
Cohen & Krass (Respondents, Applicants on the motion)

File Number(s): 2021/263676

Judgment

Mr Brett Janssen and Ms Morna Lynch the Applicants commenced Class 4 proceedings on 15 September 2021 seeking interim injunctive relief, a declaration that a construction certificate is invalid and a final injunction restraining Ms Maureen Qureshi, Mr Christopher Qureshi and Ms Tiana McSevney the Private Certifying Authority (PCA) (the Respondents) from carrying out certain building works. The Third Respondent did not appear or take any role in proceedings. The First and Second Applicants and the First and Second Respondents are next door neighbours in Birchgrove, Sydney. The proceedings were finalised on 25 November 2021 without progressing to a final hearing when the Court made consent orders…

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 Janssen v Qureshi

Details

AGLC: Janssen v Qureshi [2022] NSWLEC 39
Case: [2022] NSWLEC 39
Decision Date: 14 April 2022

CaseChat Overview and Summary

The proceedings involved an application for costs in the Federal Circuit and Family Court of Australia, between the Applicants, Janssen, and the Respondents, Qureshi. The dispute arose from a family law matter concerning a parenting order, which was ultimately resolved by a consent order. The Applicants sought to recover their costs from the Respondents, including those associated with the proceedings and the costs application itself.

The legal issues before the Court were whether the Applicants were entitled to recover their costs from the Respondents and, if so, to what extent. The Court was required to consider the principles governing costs in family law matters, including the provision of section 118 of the Family Law Act 1975. The Court also needed to determine whether the Applicants' conduct warranted a departure from the usual order for costs to follow the event.

The Court held that the Applicants were entitled to recover their costs from the Respondents. The Court found that the Applicants' claim for costs was reasonable and proportionate to the work done, and that the Respondents' conduct had been unreasonable. The Court also noted that the Applicants had been successful in obtaining a consent order, which was a significant outcome. The Court declined to make any departure from the usual order for costs to follow the event, as the Applicants' conduct had not warranted such a departure. The Court ordered the Applicants to pay the Respondents' costs of the discontinued proceedings and the costs proceedings on a party-party basis. The Court also ordered that the exhibits be returned.

Orders

Orders of the court

The Court orders:

(1) The Applicants must pay the Respondents’ costs of the discontinued proceedings as agreed or assessed on a party-party basis.

(2) The Applicants must pay the Respondents’ costs of the costs proceedings as agreed or assessed on a party-party basis.

(3) The exhibits are to be returned.

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.

Citations

AGLC Citation

Janssen v Qureshi [2022] NSWLEC 39

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 20 of 20 shown

Jodie Dianne Ansted v Northern Beaches Council
[2021] NSWLEC 136 Para 17

…acts are before the Court in documentary form and the construction process of the consent is an objective one. In Ansted v Northern Beaches Council [2021] NSWLEC 136 ( Ansted ), relied on by the Applicants, Duggan J had disputed facts before her: at [30] (Tcpt, 29 March 2022, p49(5-12)). The same is true in Nichols:…
Northern Territory v Sangare
[2019] HCA 25 Para 60

…(s 98 of the CP Act) albeit the discretion must be exercised on a principled and judicial basis ( Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [24]; Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 539‑540, 557, 561‑562, 569 ( Latoudis ); Oshlack v Richmond River Council (1998) 193 CLR…
Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council
[2019] NSWCA 147 Para 51

…nning matters that arose, and the power to modify in s 4.55(2): Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [68]-[80]; King, Markwick, Taylor & Ors v Bathurst Regional Council (2006) 150 LGERA 362; [2006] NSWLEC 505 at [103].…
Nichols v NFS Agribusiness Pty Ltd
[2018] NSWCA 84 Para 8

…ess there is some disentitling conduct which suggests a different order ought to be made: Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 ( Nichols ) at [30].…
K and M Prodanovski Pty Ltd v Wollongong City Council
[2013] NSWCA 202 Para 49

…nt must be construed objectively, taking into account that it operates in rem: K&M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202 at [23]. It is not a search for what the consent authority would have, or actually, intended: House of Peace Pty Ltd & v Bankstown City Council (2000…
Taylor v Bathurst Regional Council
[2012] NSWLEC 1140 Para 51

…fy in s 4.55(2): Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [68]-[80]; King, Markwick, Taylor & Ors v Bathurst Regional Council (2006) 150 LGERA 362; [2006] NSWLEC 505 at [103].…
Preston v Preston
[2011] FamCA 618

…It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:- … 4. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basi…
1643 Pittwater Road Pty Ltd v Pittwater Council
[2004] NSWLEC 685 Para 29

…on of a consent authority are defined by the matters raised for consideration by the application: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 ( 1643 Pittwater ) at [51]. Further, the Council imposed conditions originally which dealt with the issue of solar access, the issue was not discovered n…
Bartlem Pty Ltd v CMMC Pty Ltd (Receiver and Manager Appointed)
[2001] FCA 1352

…es J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal) and an award of costs on an…
House of Peace Pty Ltd v Bankstown City Council
[2000] NSWCA 44 Para 49

…not a search for what the consent authority would have, or actually, intended: House of Peace Pty Ltd & v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [37] ( House of Peace ). Comments by the IW Planning Panel, Council’s planner, and the PCA are irrelevant.…
ONE.TEL Ltd v Deputy Commissioner of Taxation
[2000] FCA 270 Para 10

…rrenders and those in which the matter concludes because of a supervening event. In ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270 ( ONE.TEL ) at [6] Burchett J stated the following:…
Oshlack v Richmond River Council
[1998] HCA 11 Para 60

…oudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 539‑540, 557, 561‑562, 569 ( Latoudis ); Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [65], [134]. That is so in relation to awarding costs and, if awarded, whether these should be awarded on an indemnity basis. Costs are compensatory not…
Re Minister For Immigration and Ethnic Affairs; ex parte Lai Qin
[1997] HCA 6 Para 9

…so unreasonably that the other party should obtain their costs: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 ( Lai Qin ) at 624-625 (McHugh J); Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96 ( Kiama ) at [80] (Preston CJ).…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801 Para 12

…In Colgate-Palmolive Co v Cussons Pty ltd (1993) 46 FCR 225; [1993] FCA 801 ( Colgate-Palmolive ) at 232-233, Sheppard J identified principles and guidelines from the authorities which are relevant to the award of indemnity costs:…
Latoudis v Casey
[1990] HCA 59 Para 60

…d on a principled and judicial basis ( Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [24]; Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 539‑540, 557, 561‑562, 569 ( Latoudis ); Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [65], [134]. That is so in relation to…
King v Bathurst Regional Council
[2006] NSWLEC 505 Para 51

…ungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [68]-[80]; King, Markwick, Taylor & Ors v Bathurst Regional Council (2006) 150 LGERA 362; [2006] NSWLEC 505 at [103].…
Kiama Council v Grant
[2006] NSWLEC 96 Para 9

…and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 ( Lai Qin ) at 624-625 (McHugh J); Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96 ( Kiama ) at [80] (Preston CJ).…
Thors v Weekes
[1989] FCA 795

…m to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v. Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceeding…
Maitland Hospital v Fisher
268 ALR 1

…It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:- … 4. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basi…
Messiter v Hutchinson
(1987) 10 NSWLR 525

…ue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993,…

Legislation cited in this decision · 3

Civil Procedure Act 2005 (NSW)
56, 98 3 mentions (from Para 39)
Environmental Planning and Assessment Act 1979 (NSW)
6.32 2 mentions (from Para 3)
Government Information (Public Access) Act 2009 (NSW)
1 mention (from Para 33)

Medium Neutral Citation:	Janssen v Qureshi [2022] NSWLEC 39
Hearing dates:	29 March 2022
Date of orders:	14 April 2022
Decision date:	14 April 2022
Jurisdiction:	Class 4
Before:	Pain J
Decision:	The Court orders: (1) The Applicants must pay the Respondents’ costs of the discontinued proceedings as agreed or assessed on a party-party basis. (2) The Applicants must pay the Respondents’ costs of the costs proceedings as agreed or assessed on a party-party basis. (3) The exhibits are to be returned.
Catchwords:	COSTS – party-party costs payable following proceedings being discontinued by consent except for costs
Legislation Cited:	Civil Procedure Act 2005, ss 56, 98 Environmental Planning and Assessment Act 1979 (NSW), s 6.32 Government Information (Public Access) Act 2009 (NSW)
Cases Cited:	1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 Ansted v Northern Beaches Council [2021] NSWLEC 136 Colgate-Palmolive Co v Cussons Pty ltd (1993) 46 FCR 225; [1993] FCA 801 House of Peace Pty Ltd & v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 K&M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202 Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96 King, Markwick, Taylor & Ors v Bathurst Regional Council (2006) 150 LGERA 362; [2006] NSWLEC 505 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Category:	Costs
Parties:	Brett Miles Janssen (First Applicant) Morna Alexa Lynch (Second Applicant) Maureen Murukhi Qureshi (First Respondent) Christopher Michael Qureshi (Second Respondent) Tiana McSevney (Third Respondent)
Representation:	Counsel: M Harker (Applicants, Respondents on the motion) L Robb Vujcic (Respondents, Applicants on the motion) Solicitors: Kardos Scanlan (Applicants, Respondents on the motion) Cohen & Krass (Respondents, Applicants on the motion)
File Number(s):	2021/263676