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McCrohon v P J Gann

McCrohon v P J Gann

Case [2009] NSWLEC 8 4 February 2009

Administrative Law

Admissibility of Evidence

Costs

Jurisdiction

Environmental Law

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Land and Environment Court

of New South Wales

CITATION: McCrohon v P J Gann and Another [2009] NSWLEC 8

PARTIES:
APPLICANT
Edward Ivan McCrohon
RESPONDENTS
Peter James Gann and Tracy Dawn Gann

FILE NUMBER(S): 40195 of 2007

CORAM: Sheahan J

KEY ISSUES: COSTS :- proceedings which lose their utility; who is the "successful" party; indemnity costs; party-party costs; disentitling conduct

LEGISLATION CITED: Sutherland Local Environmental Plan 2000
Sutherland Local Environmental Plan 2006

CASES CITED: Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365
Fordyce v Fordham & Anor (2006) 67 NSWLR 497
Gann & Anor v Sutherland Shire Council [2008] NSWLEC 157
Gann v Sutherland Shire Council [2008] NSWLEC 1228
Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441
Ku-ring-gai Council v Minister for Planning (No.2) [2008] NSWLEC 276
Latoudis v Casey (1991) 170 CLR 534
Metricon Qld Pty Ltd and Anor v Tweed Shire Council [2008] NSWLEC 283
Newcastle City Council v Wescombe [2008] NSWLEC 301
One.Tel Ltd and Others v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Palladium Mangement Pty Limited v Council of the City of Sydney [2008] NSWLEC 100
Ray Fitzpatrick Pty Limited v Minister for Planning (No.5) [2008] NSWLEC 183
Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622
Shellharbour City Council v Stewart [2007] NSWLEC 727

DATES OF HEARING: 30 September 2008

DATE OF JUDGMENT:
4 February 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Martin, solicitor of
MBP Legal
RESPONDENTS
Mr G Newport
SOLICITORS
Whites Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

4 February 2009

40195 of 2007 McCrohon v P J Gann and Another
JUDGMENT

Introduction

1 His Honour: These Class 4 proceedings lost all utility once the Respondents were partially successful in related Class 1 proceedings. They were subsequently dismissed by agreement, and each side now seeks against the other, an order for costs.

2 In the event that I order the Respondents to pay the Applicant’s costs, the court is asked to order that such costs be paid on an “indemnity basis up to and including 12 December 2007”.

3 Each side respectively relies on an affidavit filed by its solicitor, to which various correspondence and other documents are annexed. Both sides have also made both written and oral submissions. The relevant Class 1 file (Matter No.07/10763) is also before the court as are the two judgments delivered in that matter – by Lloyd J on a preliminary question of law (Gann & Anor v Sutherland Shire Council [2008] NSWLEC 157) on 24 April 2008, and by Senior Commissioner Roseth on the substantive proceedings (Gannv Sutherland Shire Council [2008] NSWLEC 1228) on 20 June 2008.

Background

4 The relevant factual background may be shortly described.

5 In 2004 Mr and Mrs Gann set about redeveloping…

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 McCrohon v P J Gann

Details

AGLC: McCrohon v P J Gann [2009] NSWLEC 8
Case: [2009] NSWLEC 8
Decision Date: 4 February 2009

CaseChat Overview and Summary

The case of McCrohon v P J Gann and Another concerns a dispute between two neighbours over the construction of a new house, with the applicant, Mr. McCrohon, bringing proceedings against the respondents, Mr. and Mrs. Gann, over alleged non-compliance with planning approvals. The matter was heard in the Land and Environment Court of New South Wales by Sheahan J. The legal issues before the court were whether the applicant was entitled to an order for costs, whether the respondents' conduct was disentitling, and if the applicant was the "successful" party.

Sheahan J found that the applicant was not the successful party in the proceedings, as the respondents were largely successful in their endeavours to obtain the necessary approval for their project and the work done on it. The court also found that the respondents were not guilty of any disentitling conduct, as they were entitled to rely on their consent and certification, and took steps to address the issues raised by the applicant and the council. As a result, the court ordered that the applicant pay the respondents' costs of the proceedings on a party-party basis.

In conclusion, the court found that the applicant was not entitled to an order for costs, and that the respondents were entitled to recover their costs of the proceedings. The applicant was ordered to pay the respondents' costs, as agreed or assessed, including the costs they have incurred in respect of the determination of the competing applications for costs.

Orders