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Kiama Council v Grant

Kiama Council v Grant

Case [2006] NSWLEC 96

Breach of Contract

Unconscionable Conduct

Civil Litigation & Procedure

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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…

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 Kiama Council v Grant

Details

AGLC: Kiama Council v Grant [2006] NSWLEC 96
Case: [2006] NSWLEC 96
Decision Date: 03/07/2006

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.

Orders