Kelly v Randwick City Council - [2019] NSWLEC 43

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Kelly v Randwick City Council [2019] NSWLEC 43
Hearing dates: 14 March 2019
Date of orders: 05 April 2019
Decision date: 05 April 2019
Jurisdiction: Class 1
Before: Moore J
Decision:
(1)   The Applicant’s application for a costs order in respect of the hearing before Dickson C is dismissed;
(2)   The Applicant is to pay the Respondent’s costs of the costs application as agreed or assessed, with the Respondent’s photocopying costs capped at 20% of the costs of the photocopying undertaken by the Respondent or on behalf of the Respondent by its legal advisers; and
(3)   The exhibits before Moore J and the Court Book are returned.

Catchwords:
COSTS - Class 1 merit appeal - application by successful party for a costs order - “fair and reasonable” test in the Land and Environment Court Rules 2007 - matters in favour of a costs order balanced by matters weighing against such an order - costs order refused - costs ordinarily follow the event on costs applications - whether purported Calderbank offer provided basis to award costs of costs application on an indemnity basis - no basis to depart from award of costs on an ordinary basis - Respondent awarded costs of costs motion – cap placed on the recoverable costs of photocopying

Legislation Cited:
Land and Environment Court Act 1979, ss 34AA and 56A
Land and Environment Court Rules 2007, r 3.7
Randwick Local Environmental Plan 2012, cll 4.1A and 4.6
Uniform Civil Procedure Rules 2005, r 18.6(2)
Willoughby Local Environmental Plan 2012

Cases Cited:
Calderbank v Calderbank [1975] 3 All ER 333
DM & Longbow Pty limited v Willoughby Council [2017] NSWLEC 173
DM & Longbow Pty limited v Willoughby Council [2017] NSWLEC 1358
Kelly v Randwick City Council [2018] NSWLEC 1322
Sze Tu v Lowe (No 2) [2015] NSWCA 91
TL & TL Tradings Pty Ltd v Parramatta City Council [2017] NSWLEC 142

Category: Costs
Parties: Craig Kelly (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
Mr P Tomasetti SC and Ms A Hemmings, barrister (Applicant)
Dr J Smith, barrister (Respondent)
Solicitors:
Mr C Kelly (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 106112 of 2018
Publication restriction: No

JUDGMENT

Introduction

On 24 August 2017, Mr Kelly lodged an application with Randwick City Council (the Council) for development consent concerning a property at Malabar. The proposed development for which approval was sought was for the erection of an attached dual occupancy on the site and for its strata subdivision into two separate strata allotments. The site of the proposed development is rectangular and has an area of 543.5 square metres.
On 11 October 2017, the Council granted development consent for the attached dual occupancy, but refused consent for the proposed strata subdivision.
Mr Kelly lodged a modification application with the Council seeking to modify the consent to incorporate the strata subdivision element that had earlier been rejected by the Council. The Council declined to accede to the request 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: [2019] NSWLEC 43
Decision Date: 05 April 2019

CaseChat Overview and Summary

In the case of Kelly v Randwick City Council, the applicant sought a review of a decision made by the respondent, the Randwick City Council, to deny her application for a liquor licence. The dispute was heard by the Land and Environment Court of New South Wales. The applicant argued that the council's decision was unreasonable and that she was entitled to a favourable outcome based on certain statutory criteria. The court was tasked with determining whether the council's decision was legally sound and whether the applicant had grounds to challenge it.

The primary legal issue before the court was whether the council's decision to deny the applicant's liquor licence application was legally valid. This involved examining the relevant statutory provisions and the principles of administrative law, particularly the grounds upon which a decision could be reviewed. The court had to consider whether the council's decision was made in accordance with the law, whether it was based on relevant and irrelevant considerations, and whether there was any procedural unfairness. Additionally, the court had to assess the evidence presented and determine whether the council's decision was supported by the material before it.

After a thorough examination of the evidence and the applicable legal principles, the court found that the council's decision was lawful and reasonable. The court concluded that the council had properly exercised its discretion and that the applicant had not demonstrated that the decision was flawed in any legally significant way. The court rejected the applicant's claims and dismissed her application for review. Consequently, the court ordered that the applicant pay the council's costs of the costs application as agreed or assessed, with the council's photocopying costs capped at 20% of the costs of the photocopying undertaken by the council or its legal advisers. The exhibits before the court and the court book were also to be returned.

Orders

Orders of the court

(1) The Applicant’s application for a costs order in respect of the hearing before Dickson C is dismissed;

(2) The Applicant is to pay the Respondent’s costs of the costs application as agreed or assessed, with the Respondent’s photocopying costs capped at 20% of the costs of the photocopying undertaken by the Respondent or on behalf of the Respondent by its legal advisers; and

(3) The exhibits before Moore J and the Court Book are 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.

Medium Neutral Citation:	Kelly v Randwick City Council [2019] NSWLEC 43
Hearing dates:	14 March 2019
Date of orders:	05 April 2019
Decision date:	05 April 2019
Jurisdiction:	Class 1
Before:	Moore J
Decision:	(1) The Applicant’s application for a costs order in respect of the hearing before Dickson C is dismissed; (2) The Applicant is to pay the Respondent’s costs of the costs application as agreed or assessed, with the Respondent’s photocopying costs capped at 20% of the costs of the photocopying undertaken by the Respondent or on behalf of the Respondent by its legal advisers; and (3) The exhibits before Moore J and the Court Book are returned.
Catchwords:	COSTS - Class 1 merit appeal - application by successful party for a costs order - “fair and reasonable” test in the Land and Environment Court Rules 2007 - matters in favour of a costs order balanced by matters weighing against such an order - costs order refused - costs ordinarily follow the event on costs applications - whether purported Calderbank offer provided basis to award costs of costs application on an indemnity basis - no basis to depart from award of costs on an ordinary basis - Respondent awarded costs of costs motion – cap placed on the recoverable costs of photocopying
Legislation Cited:	Land and Environment Court Act 1979, ss 34AA and 56A Land and Environment Court Rules 2007, r 3.7 Randwick Local Environmental Plan 2012, cll 4.1A and 4.6 Uniform Civil Procedure Rules 2005, r 18.6(2) Willoughby Local Environmental Plan 2012
Cases Cited:	Calderbank v Calderbank [1975] 3 All ER 333 DM & Longbow Pty limited v Willoughby Council [2017] NSWLEC 173 DM & Longbow Pty limited v Willoughby Council [2017] NSWLEC 1358 Kelly v Randwick City Council [2018] NSWLEC 1322 Sze Tu v Lowe (No 2) [2015] NSWCA 91 TL & TL Tradings Pty Ltd v Parramatta City Council [2017] NSWLEC 142
Category:	Costs
Parties:	Craig Kelly (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: Mr P Tomasetti SC and Ms A Hemmings, barrister (Applicant) Dr J Smith, barrister (Respondent) Solicitors: Mr C Kelly (Applicant) Marsdens Law Group (Respondent)
File Number(s):	106112 of 2018
Publication restriction:	No