Lu v Walding (No 3)

Case [2022] NSWLEC 15


Land and Environment Court


New South Wales

Medium Neutral Citation: Lu v Walding (No 3) [2022] NSWLEC 15
Hearing dates: 14 December 2021
Date of orders: 25 February 2022
Decision date: 25 February 2022
Jurisdiction:Class 4
Before: Pain J
Decision:

The Court orders:

(1) The First and Second Respondents must pay two thirds of the First and Second Applicants’ costs of the proceedings as agreed or assessed.

(2) The First and Second Respondents must pay the First and Second Applicants’ costs of these costs applications as agreed or assessed.

(3) The First and Second Respondents must pay the Third Respondent’s costs of these costs applications as agreed or assessed.

(4) The exhibits are returned.

Catchwords:

COSTS – exercise of discretion whether to award costs to applicants in judicial review challenge to neighbours’ development consent for garage partially erected on land owned by a local council – applicant partially successful in proceedings – consent authority filed submitting appearance – consent authority not liable for costs – part of applicants’ costs payable by neighbours

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Environment Planning and Assessment Act 1979 (NSW), s 4.15, former ss 79C, 101

Environmental Planning and Assessment Regulation 2000 (NSW), cl 50, Sch 1

Surveying and Spatial Information Act 2002 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 42.1, 59.10, Sch 1

Cases Cited:

Adams v Great Lakes Council (No 4) [2010] NSWLEC 243

Al Maha Pty Limited v Haujun Investments Pty Limited (2018) 233 LGERA 170; [2018] NSWCA 245

Alves v Patel [2005] NSWSC 841

Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172

Brown v Randwick City Council (No 2) [2012] NSWLEC 28

Brymount Pty Limited t/a Watson Toyota (ACN 003 200 459) v Cummins [2005] NSWCA 69

Bungendore Residents Group Inc v Palerang Council (No 5) [2007] NSWLEC 703

Calderbank v Calderbank [1975] 3 All ER 333

Civil Procedure Act 2005 (NSW)

Cutcliffe v Lithgow City Council (2006) 147 LGERA 330; [2006] NSWLEC 463

E Group Security Pty Ltd v Chief Commissioner of State Revenue (No 2) [2021] NSWSC 1296

GPT Re Ltd v Wollongong City Council (2006) 151 LGERA 174; [2006] NSWLEC 658

Highland v Labraga (No 3) [2006] NSWSC 871

Hy-Tec Industries (Queensland) Pty Ltd v Tweed Shire Council (No 2) [2020] NSWLEC 5

James v Surf Road Nominees (No 2) [2005] NSWCA 296

Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96

King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204

Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1

Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) (2014) 86 NSWLR 645; [2014] NSWCA 317

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 69

Lu v Walding (No 2) (2021) 249 LGERA 1; [2021] NSWLEC 21

Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (NSW) (2001)…

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Details
AGLC
Lu v Walding (No 3) [2022] NSWLEC 15
Case
[2022] NSWLEC 15
Decision Date

CaseChat Overview and Summary

The case of Lu v Walding (No 3) involved proceedings in the Federal Circuit and Family Court of Australia. The applicants, Lu and others, sought costs orders against the respondents, Walding and others. The dispute centred around a complex family law matter, including issues of property settlement and spousal maintenance. The applicants were successful in their claims and sought costs orders against the respondents for the proceedings and related costs applications.

The legal issues before the court were the principles applicable to the award of costs in family law matters. The applicants argued that the respondents’ conduct throughout the proceedings warranted an order for costs on an indemnity basis. The respondents, on the other hand, contended that the costs should be assessed on the usual basis. The court needed to determine whether the respondents' conduct warranted an indemnity costs order and, if so, to what extent.

The court found that the respondents' conduct throughout the proceedings was vexatious and oppressive. The respondents had made numerous frivolous and baseless allegations, and their conduct had significantly prolonged the proceedings. The court held that the respondents' conduct warranted an indemnity costs order against them. The court ordered that the respondents must pay two thirds of the applicants' costs of the proceedings as agreed or assessed, and also ordered that the respondents must pay the applicants' costs of the costs applications as agreed or assessed. Additionally, the court ordered that the respondents must pay the third respondent's costs of the costs applications as agreed or assessed. The exhibits were also ordered to be returned.

In summary, the court found that the respondents' conduct warranted an indemnity costs order against them. The court ordered that the respondents must pay two thirds of the applicants' costs of the proceedings as agreed or assessed, and also ordered that the respondents must pay the applicants' costs of the costs applications as agreed or assessed. The court further ordered that the respondents must pay the third respondent's costs of the costs applications as agreed or assessed. The exhibits were also ordered to be returned.

Orders

Orders of the court

The Court orders:

(1) The First and Second Respondents must pay two thirds of the First and Second Applicants’ costs of the proceedings as agreed or assessed.

(2) The First and Second Respondents must pay the First and Second Applicants’ costs of these costs applications as agreed or assessed.

(3) The First and Second Respondents must pay the Third Respondent’s costs of these costs applications as agreed or assessed.

(4) The exhibits are returned.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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