Michales v Dimoski (No 2) - [2007] NSWLEC 591

Land and Environment Court

of New South Wales

CITATION: Michales v Dimoski and Ors (No 2) [2007] NSWLEC 591

PARTIES:
APPLICANT
Paul Michales
FIRST RESPONDENT
Sash Dimoski
SECOND RESPONDENT
Hurstville City Council
THIRD RESPONDENT
Bernard Cohen
FOURTH RESPONDENT
Shifa Li

FILE NUMBER(S): 40253 of 2006

CORAM: Pain J

KEY ISSUES: Costs :- exercise of discretion to award costs to successful party in Class 4 proceedings

LEGISLATION CITED: Land and Environment Court Act 1979 s69
Land and Environment Court Rules 1996 Pt 15 r 9

CASES CITED: Duncan v Moore (2000) 107 LGERA 430;
Latoudis v Casey (1990) 170 CLR 534;
Michales v Dimoski and Ors [2007] NSWLEC 443

DATES OF HEARING: 11 September 2007 (written submissions)
14 September 2007 (written submissions)

DATE OF JUDGMENT:
21 September 2007

LEGAL REPRESENTATIVES: APPLICANT
Mr B Stavropoulos (solicitor)
SOLICITOR
Stavropoulos Solicitors
FIRST and THIRD RESPONDENTS
Ms S Kluss
SOLICITOR
Hancock Alldis & Roskov
SECOND RESPONDENT
Mr M Fraser
SOLICITOR
Home Wilkinson Lowry
FOURTH RESPONDENT
No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

21 September 2007

40253 of 2006 Michales v Dimoski and Ors (No 2)
JUDGMENT ON COSTS

1 Her Honour: I handed down my judgment dismissing the Applicant’s Notice of Motion to reopen completed Class 4 proceedings on 4 September 2007 in Michales v Dimoski and Ors [2007] NSWLEC 443 . As identified at [56] of that judgment the usual rule in Class 4 proceedings is that costs follow the event so that an unsuccessful applicant would be ordered to pay the Respondents’ costs in the absence of disentitling conduct by the Respondents. I have allowed written submissions on costs to be filed by the Applicant’s solicitor and written submissions in reply before making final orders. I note that only the First and Second Respondents participated in the argument on the Applicant’s Notice of Motion.

Applicant’s submissions

2 The Applicant’s solicitor submitted that one basis for the decision of the Court was the failure by the Applicant to prove fraud. One reason for this was that the affidavit of the Applicant sworn 13 March 2007 was not formally read. As the Applicant was unrepresented at the hearing and the Applicant’s solicitor was not instructed until after the hearing was completed and was not therefore aware of all that had occurred at the hearing, he was at a disadvantage in making the written submissions which assumed that the affidavit had been formally read. The Applicant was at a disadvantage as a result. The Applicant did not act unreasonably in seeking to reopen proceedings in which, if the Applicant’s allegations of fraud were true, the judgment would be flawed. (I note that the proceedings that were sought to be reopened were dismissed by consent of both the parties so that there is no judgment of the Court on the merits of the matter).

3 A costs order against the Applicant at this stage may work an injustice as it is unlikely that the Applicant, if he…

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 Michales v Dimoski (No 2)

Details

AGLC: Michales v Dimoski (No 2) [2007] NSWLEC 591
Case: [2007] NSWLEC 591
Decision Date: 21 September 2007

CaseChat Overview and Summary

The Land and Environment Court of New South Wales presided over the case of Michales v Dimoski (No 2), where Paul Michales sought to reopen completed Class 4 proceedings against Sash Dimoski, Hurstville City Council, Bernard Cohen, and Shifa Li. The case focused on the exercise of the court's discretion to award costs to the successful party in Class 4 proceedings. Michales, who was unrepresented during the initial proceedings, sought to reopen the case based on alleged fraud, which was dismissed by consent. Michales's solicitor argued that his client's lack of representation and the failure to formally read the affidavit contributed to the unsuccessful outcome, and that a costs order would cause significant hardship due to Michales's financial situation.

The court examined the submissions from both Michales and the respondents. Michales contended that he should not be liable for costs due to his disadvantaged position and potential financial hardship. In contrast, the respondents argued that costs should follow the event, and that Michales's financial situation was irrelevant. The court considered the wide discretion it held in awarding costs, as outlined in the Land and Environment Court Act 1979 and relevant case law, and found no disentitling conduct by the respondents. The court determined that the usual rule of costs following the event should apply, despite Michales's submissions regarding his disadvantage and financial hardship.

The court ruled that the usual rule of costs following the event should apply, and dismissed Michales's Notice of Motion to reopen the proceedings. The court found that Michales's submissions did not justify a departure from the usual rule. Accordingly, the court ordered Michales to pay the costs of the First and Second respondents. The decision underscored the court's broad discretion in awarding costs, and the importance of considering the conduct of the litigation when exercising that discretion.

Orders