CITATION: Maule v Liporoni & Anor [No. 2] [2002] NSWLEC 140

PARTIES:
APPLICANT:
Susan Jane Maule
FIRST RESPONDENT:
Marco Liporoni
SECOND RESPONDENT:
Gosford City Council

FILE NUMBER(S): 40018 of 2001

CORAM: Lloyd J

KEY ISSUES: Costs :- public interest litigation - indemnity costs

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 5A, s 28, s 69(1)(a), s 78A(8)(b) and s 101, 123
Rivers and Foreshores Improvement Act 1948

CASES CITED: Amacon Pty Ltd v The Council of the Municipality of Concord, NSWLEC, Hemmings J, 2 December 1987, unreported;
Botany Municipal Council v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412; 76 LGERA 213;
Carver & Anor v Bankstown City Council [1999] NSWLEC 130;
Darlinghurst Residents' Association v Elarosa Investments Pty Ltd & Anor [No 3] (1992) 75 LGRA 214;
Degmam Pty Ltd (in liq) v Wright (No. 2) (1983) 2 NSWLR 354;
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397;
Latoudis v Casey (1990) 170 CLR 534;
Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd [No 2] 75 LGRA 210;
Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265;
Maule v Liporoni [2001] NSWLEC 141;
Morris v Gosford City Council & Anor, NSWLEC, Bignold J, 29 November 1996, unreported;
Oshlack v Richmond River Council (1998) 193 CLR 72;
R v Hickman & Anor; Ex parte Fox & Anor (1945) 70 CLR 598;
Rosniak v Government Insurance Office (1997) 41 NSWLR 608;
Rundle v Tweed Shire Council; Attorney-General of New South Wales Intervening (1989) 68 LGRA 308 ;
Rundle v Tweed Shire Council [No 2] (1989) 69 LGRA 21;
Waverly Council v Refkin Pty Ltd [2000] NSWLEC 124;
Woolworths Limited & Anor v Bathurst City Council & Anor (1987) 63 LGRA 55;
Wyong Shire Council v Darcy Peter Smith & Anor [1992] NSWLEC 134

DATES OF HEARING: 20/06/2002

DATE OF JUDGMENT:
08/12/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J R Dupree (barrister)
SOLICITORS:
L C Muriniti & Associates
FIRST RESPONDENT:
Mr C M Harris (barrister)
SOLICITORS:
Tesoriero Henderson Cotter
SECOND RESPONDENT:
Mr P C Tomasetti (barrister)
SOLICITORS:
P J Donnellan & Co

JUDGMENT:

IN THE LAND AND Matter No.: 40018 of 2001

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 12 August 2002

SUSAN JANE MAULE

Applicant

MARCO LIPORONI

First Respondent

GOSFORD CITY COUNCIL

Second Respondent

REASONS FOR JUDGMENT [No. 2]

1. On 19 March 2002, following an eight day hearing, I dismissed the applicant’s claim that sought declarations and orders relating to the validity of a development consent granted to the first respondent (Mr M Liporoni) by the second respondent (Gosford City Council): see Maule v Liporoni & Anor [2002] NSWLEC 25. In dismissing the applicant’s claim I reserved the question…

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 Maule v Liporoni (No 2)

Details

AGLC: Maule v Liporoni (No 2) [2002] NSWLEC 140
Case: [2002] NSWLEC 140
Decision Date: 08/12/2002

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was tasked with determining a dispute between Susan Jane Maule, the applicant, and Marco Liporoni, the first respondent, along with Gosford City Council, the second respondent. The applicant sought declarations and orders challenging the validity of a development consent granted by the council to the first respondent. The court had previously dismissed the applicant's claim, reserving the question of costs. Both respondents now seek an order for their costs on an indemnity basis, while the applicant opposes any order for costs.

The court considered the nature of the proceedings, concluding that they could not be characterised as public interest litigation. It emphasised that the successful party in litigation is generally entitled to an award of costs, barring any conduct that disentitles them from the benefit of the discretion. The court found that the applicant's numerous allegations lacked merit and evidence, and were made without regard to whether there was any evidence in support thereof. The applicant persisted with allegations that were clearly excluded from consideration by relevant legislation and despite being informed of the implications beforehand. The applicant's allegation of mala fides was made without any basis or evidence to support it, amounting to an abuse of process.

The court ordered the applicant to pay the respondents' costs of or incidental to the proceedings on an indemnity basis, including reserved costs and the costs of the motions for costs. It held that the applicant's conduct in multiplying allegations without foundation grossly prolonged the litigation, causing the respondents to incur liability for costs far beyond what they could reasonably have expected to incur in litigation of genuine issues.

Orders