Kiama Council v Grant

Case [2006] NSWLEC 96


Reported Decision: 143 LGERA 441

Land and Environment Court


of New South Wales


CITATION: Kiama Council v Grant [2006] NSWLEC 96
PARTIES:

APPLICANT
Kiama Council

RESPONDENT
John B Grant
FILE NUMBER(S): 40657 of 2003
CORAM: Preston CJ
KEY ISSUES: Costs :- civil enforcement proceedings - carrying out development without development consent - order sought in originating process to remedy breach of law by carrying out remedial work - respondent defended proceedings for 2 1/2 years- respondent ultimately consented to the Court making an order to carry out remedial work in substantially the same terms as originally sought - principles governing exercise of discretion to order costs - costs order made
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979 (NSW) s 69(2)
Land and Environment Court Rules 1996 (NSW) Pt 15 r 7
CASES CITED: Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194;
Australian Securities Commission v Berona Investments Pty Limited (1995) 18 ACSR 772;
Brown v Mornington Peninsula Shire Council (2004) 140 LGERA 11;
Byron Shire Council v McAdam (2001) 116 LGERA 418;
Cassegrain v CTK Engineering Pty Ltd (2005) 54 ACSR 249;
Grant v Kiama Council [2005] NSWLEC 58 (4 July 2005);
Hamilton v Woollahra Council [1992] NSWLEC 48 (10 July 1992);
Hayden Theatres Pty Ltd v Penrith City Council (1998) 105 LGERA 230;
Jan Yee Australia Pty Ltd v Woollahra Council [1997] NSWLEC 33 (26 March 1997);
Joanou v Randwick City Council (1998) 105 LGERA 237;
Kurnell Lodge Pty Ltd v Bourne [2004] NSWLEC 329 (24 May 2004);
Logwon Pty Ltd v Warringah Shire Council [1993] NSWLEC 143 (27 August 1993);
Manly Council v Kelly [2005] NSWLEC 685 (29 November 2005);
Morris v Gosford City Council [1996] NSWLEC 254 (29 November 1996);
Murray v Valaire (No. 2) [2001] NSWLEC 241 (7 March 2001);
Newcastle City Council v Winwood [2005] NSWLEC 294 (3 June 2005);
Pavements & Excavations Pty Ltd v Tones (unreported, Court of Appeal (NSW), 28 March 1991);
One.Tel Limited v Commissioner of Taxation (2001) 101 FCR 548;
Oshlack v Richmond River Council (1998) 193 CLR 72;
Perera & Dee v Gorczynski [2002] NSWSC 639 (25 July 2002);
Pittwater Council v Varney [2005] NSWLEC 651 (15 November 2005);
Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622;
Sydney City Council v Doltone House Wharf [2006] NSWLEC 81 (7 February 2006);
Wollondilly Shire Council v Anh Nhu Le (2004) 137 LGERA 416
DATES OF HEARING: 20/02/2006
 
DATE OF JUDGMENT: 

03/07/2006
LEGAL REPRESENTATIVES:

APPLICANT
P V Moggach (solicitor)
SOLICITORS
Kearns & Garside

RESPONDENT
L M Byrne (barrister)
SOLICITORS
Thurlow Fisher



JUDGMENT:

        THE LAND AND
        ENVIRONMENT COURT
        OF NEW SOUTH WALES

        PRESTON CJ

        8 MARCH 2006

        40657 OF 2003

        KIAMA COUNCIL V GRANT

        JUDGMENT

1 HIS HONOUR: The applicant, Kiama Council (“the Council”), has applied for an order for costs in concluded civil enforcement proceedings in Class 4 of the Court’s jurisdiction.

2 The proceedings were commenced…

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AGLC
Kiama Council v Grant [2006] NSWLEC 96
Case
[2006] NSWLEC 96
Decision Date

CaseChat Overview and Summary

Kiama Council commenced proceedings against John B Grant for carrying out development works without development consent and sought an order for costs in the proceedings. The proceedings were concluded by the Court making orders that Mr Grant carry out remedial works on his land and pay the costs of the proceedings. Mr Grant submitted that the Council should not be entitled to the usual order as to costs because there was disentitling conduct on the part of the Council. The Court rejected these submissions and ordered Mr Grant to pay the costs of the proceedings and the application for costs.

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