Marrickville Council v Cleary

Land and Environment Court

New South Wales

Medium Neutral Citation:	Marrickville Council v Cleary [2015] NSWLEC 24
Hearing dates:	16 February 2015
Date of orders:	17 February 2015
Decision date:	17 February 2015
Jurisdiction:	Class 4
Before:	Craig J
Decision:	The First and Second Respondents must pay the Applicant’s costs of the proceedings. The proceedings are otherwise dismissed. Exhibits on the costs hearing may be returned.
Catchwords:	COSTS - Class 4 proceedings - interlocutory proceedings - s 121B of the Environmental Planning and Assessment Act 1979 - prohibited residential land use and unauthorised business use - whether conduct of Council is such that it is disentitled to an order for costs - r 42.1 of the Uniform Civil Procedure Rules - whether reasonable notice had been given by Council of its intention to commence proceedings - proceedings commenced and continued reasonably by the Council - orders for costs.
Legislation Cited:	Civil Procedure Act 2005 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Marrickville Local Environmental Plan 2011
Cases Cited:	Council of the City of Sydney v Chapman [2007] NSWLEC 146 Marrickville Council v Cleary [2014] NSWLEC 203 Melbourne University Publishing Ltd v Williamson [2005] FCA 1910
Category:	Costs
Parties:	Marrickville Council (Applicant) Mark Stephen Cleary (First Respondent) Mark Cleary and Associates Pty Ltd (Second Respondent) Shu Min Zhang (Third Respondent) Edward Gee (Fourth Respondent)
Representation:	Counsel: M Cottom (solicitor) (Applicant) N Hammond (First and Second Respondents) No appearance (Third and Fourth Respondents) Solicitors: HWL Ebsworth Lawyers (Applicant) No appearance (Third and Fourth Respondents)
File Number(s):	40541 of 2014

EX TEMPORE Judgment

1. For all practical purposes, these Class 4 proceedings in which orders are sought by way of civil enforcement, have been resolved, save as to costs. Marrickville Council (the Council) seeks the payment of its costs by the First and Second Respondents. That order is opposed by those Respondents.

2. The First and Second Respondents contend that the conduct of the Council is such that it is disentitled to an order for costs. The disentitling conduct for which it contends is the absence of reasonable notice on behalf of the Council of its intention to commence proceedings before so doing. The appropriate exercise of discretion, so the First and Second Respondents submit, is that there be no order as to costs, to the intent that each party bears its and his own costs.

3. The parties acknowledge that while the Court has a discretion as to the order for costs that should appropriately be made (s 98 Civil Procedure Act 2005 (NSW)), costs should follow the event “unless it appears to the court that some other order should be made” (r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW)) (UCPR). Although no order finally disposing of the proceedings has yet been made, the “event” upon which the Council relies is the making of interlocutory orders with which the First and Second Respondents complied by agreeing to vacate the premises as the Council had sought. As the premises…