McGovern v Ku-ring-gai Council (No 2) - [2008] NSWLEC 50

Land and Environment Court

of New South Wales

CITATION: McGovern and Anor v Ku-ring-gai Council and Anor (No 2) [2008] NSWLEC 50

PARTIES: APPLICANTS
David and Roslyn McGovern
FIRST RESPONDENT
Ku-ring-gai Council
SECOND RESPONDENT
Marilena Allen

FILE NUMBER(S): 40607 of 2005

CORAM: Pain J

KEY ISSUES: Costs :- exercise of discretion to award costs in judicial review proceedings

LEGISLATION CITED: Land and Environment Court Act 1979 s 69
Uniform Civil Procedure Rules 2005 Pt 42

CASES CITED: Latoudis v Casey (1990) 170 CLR 534
McGovern v Ku-Ring-Gai Council & Anor [2007] NSWLEC 22

DATES OF HEARING: 9 November 2007 (written submissions)
23 November 2007 (written submissions)
3 December 2007 (written submissions)

DATE OF JUDGMENT:
11 February 2008

LEGAL REPRESENTATIVES: APPLICANT
Mr P Roberts SC
Mr R Beech-Jones SC
SOLICITOR
Bradfield and Scott
FIRST RESPONDENT
Dr J E Griffiths SC
Ms M Allars
SOLICITOR
Deacons
SECOND RESPONDENT
Mr P McEwen SC
SOLICITOR
Harris Freidman Hyde Page

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

11 February 2008

40607 of 2005 McGovern and Anor v Ku-Ring-Gai Council and Anor (No 2)
JUDGMENT

1 Her Honour: In McGovern v Ku-Ring-Gai Council & Anor [2007] NSWLEC 22 (McGovern (No 1)) I dismissed the Applicants’ Class 4 application concerning a challenge to the validity of a development consent issued by the Council to the Second Respondent in 2005. The issue of costs remains outstanding. In this matter each party is seeking its costs as follows.

2 The Council seeks orders that:

(a) the Applicants pay the Council’s costs of the proceedings, including any reserved costs, as agreed or assessed;

(b) the Applicants pay the Council’s costs of the motion; and

3 The Second Respondent seeks orders that: the Applicants pay the Second Respondent’s costs of the proceedings, including any reserved costs, as agreed or assessed.

4 The Applicants seek orders that:

(a) the Respondents pay the Applicants’ costs of the proceedings up to 28 October 2005;

(b) thereafter there should be no order as to costs; or

5 In the substantive hearing the Applicants relied on the Third Further Amended Points of Claim (TFAPOC) which referred to numerous challenges to the grant of a development application filed in 2004 (the 2004 DA) and a development application filed in 2005 (the 2005 DA). The case as actually argued at the hearing was based on five grounds of challenge and those are the matters considered in my judgment. The grounds were as follows:

(i) Non-compliance of 2005 DA with statutory requirements – necessity for a proper survey and certification of Statement of Environmental Effects;

(ii) Misrepresentation in relation to matters fundamental to the grant of the 2005 DA;

(iii) Breach of natural justice by the Council in granting the 2005 DA;

(iv) Failure to take into account relevant considerations by…

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.

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Details

Case: [2008] NSWLEC 50
Decision Date: 11 February 2008

CaseChat Overview and Summary

In McGovern v Ku-ring-gai Council (No 2), the applicants, David and Roslyn McGovern, sought judicial review of a development consent issued by Ku-ring-gai Council to Marilena Allen. The case was heard in the Land and Environment Court of New South Wales, presided over by Pain J. The central issue before the court was the allocation of costs in the judicial review proceedings, following the unsuccessful challenge to the validity of the development consent.

The applicants argued that they were entitled to costs up to a specific date, claiming that their challenge to an earlier development consent was successful due to its surrender. They also contended that there was disentitling conduct by the council and the second respondent, which should preclude an award of costs against them. The council and the second respondent sought their costs from the applicants, asserting that they were entirely successful in the proceedings and that there was no disentitling conduct.

The court considered the statutory framework and the relevant case law, noting that costs are compensatory rather than punitive. The court found that the focus of the hearing was the validity of the 2005 development application, and the respondents were successful on all grounds argued. There was no event suggesting that the applicants should have costs up to 28 October 2005, as they continued to press their challenge against the earlier development application, which had little relevance to the issues ultimately argued. The court also rejected the applicants' claims of disentitling conduct by the respondents.

The court ordered that the applicants pay the costs of both the council and the second respondent, as well as the costs of the motions filed by both respondents. This decision reflects the principle that costs generally follow the event in the absence of disentitling conduct.

Orders