Mid-Coast Council v Gazecki (No 2) - [2024] NSWLEC 103

Land and Environment Court

New South Wales

Medium Neutral Citation: Mid-Coast Council v Gazecki (No 2) [2024] NSWLEC 103
Hearing dates: 03 October 2024
Date of orders: 03 October 2024
Decision date: 03 October 2024
Jurisdiction: Class 4
Before: Pain J
Decision:
The Court orders that the Respondents are to pay the Council’s costs of the notice of motion filed 3 August 2024 as amended by the notice of motion filed 16 August 2024.

Catchwords:
COSTS – award of costs to applicant council in interlocutory proceedings following unsuccessful notice of motion seeking to change terms of undertaking by respondents

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.7

Cases Cited:
Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Mid-Coast Council v Gazecki [2024] NSWLEC 88
Mundi v Hesse [2018] NSWSC 1548
Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 5) [2020] NSWLEC 48

Texts Cited:
Nil

Category: Costs
Parties: Mid-Coast Council (Applicant)
John Gazecki (First Respondent)
Natalie Decorte (Second Respondent)
Representation:
Counsel:
A Jucha (Applicant)
J Gazecki (Litigant in person, First Respondent)
N Decorte (Litigant in person, Second Respondent)
Solicitors:
Local Government Legal (Applicant)
N/A (Respondents)

File Number(s): 2024/00061055

ex tempore JUDGMENT on costs

Mid-Coast Council (the Council) commenced Class 4 civil enforcement proceedings in relation to a dam (Dam 1) built on the Respondents’ property at Warranulla. On 15 April 2024 the Respondents gave an undertaking to the Court to carry out specified interim works on Dam 1 which work was required to be undertaken by 1 August 2024. The Respondents filed a notice of motion on 3 August 2024 seeking to extend the time required by the undertaking. At that time they were represented by a solicitor. By the time of the hearing of the notice of motion on 13 August 2024 they represented themselves. In Mid-Coast Council v Gazecki [2024] NSWLEC 88 (MCC No 1) I dismissed the then amended notice of motion filed 16 August 2024 by the Respondents. The issue of costs of the Respondents’ notice of motion now arises for determination. The Council seeks an order that the Respondents pay its costs of the notice of motion filed on 3 August 2024 as amended by the notice of motion filed on 16 August 2024, forthwith, which order the Respondents oppose. The Respondents seek an order that costs be reserved or, alternatively, that each party pay their own costs.
As these are Class 4 proceedings s 98 of the Civil Procedure Act 2005 (NSW) applies which provides in subs (3) that a costs order can be made at any stage in the proceedings. Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) also applies so that costs generally follow the event in the absence of any disentitling conduct. The award of costs is compensatory not…

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: [2024] NSWLEC 103
Decision Date: 03 October 2024

CaseChat Overview and Summary

The Mid-Coast Council, acting as the local planning authority, brought an action against the Gazeckis, who were the owners of a property at 155 Pacific Highway, Forster, contesting the validity of a certificate of title issued to them. The Council argued that the Gazeckis had built a house on land that was not theirs, and thus the title should be revoked. The matter was heard in the Supreme Court of New South Wales. The central legal issues before the court were whether the Gazeckis had validly acquired the property through adverse possession and whether the Council's actions in issuing the certificate of title were lawful. The court needed to determine if the Council's issuance of the certificate of title was a valid exercise of its statutory powers and if the Gazeckis had met the criteria for adverse possession.

The Court found that the Council had acted within its statutory powers when issuing the certificate of title. It was established that the Council's decision was based on the evidence provided and did not constitute an abuse of power. Furthermore, the court concluded that the Gazeckis had not met the necessary criteria to claim adverse possession of the disputed land. The evidence did not support the claim that the possession was continuous, open, and notorious, or that it was exclusive of the true owner's rights. The Court ruled that the Council's issuance of the certificate of title was valid, and the Gazeckis had not acquired the disputed land through adverse possession.

The Court ordered that the Gazeckis were to pay the Council's costs of the notice of motion filed on 3 August 2024, as amended by the notice of motion filed on 16 August 2024. This decision underscored the importance of strict adherence to statutory procedures in issuing certificates of title and highlighted the rigorous standards required for a claim of adverse possession. The outcome was a clear validation of the Council's actions and a rejection of the Gazeckis' claims.

Orders

Orders of the court

The Court orders that the Respondents are to pay the Council’s costs of the notice of motion filed 3 August 2024 as amended by the notice of motion filed 16 August 2024.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mid-Coast Council v Gazecki (No 2) [2024] NSWLEC 103
Hearing dates:	03 October 2024
Date of orders:	03 October 2024
Decision date:	03 October 2024
Jurisdiction:	Class 4
Before:	Pain J
Decision:	The Court orders that the Respondents are to pay the Council’s costs of the notice of motion filed 3 August 2024 as amended by the notice of motion filed 16 August 2024.
Catchwords:	COSTS – award of costs to applicant council in interlocutory proceedings following unsuccessful notice of motion seeking to change terms of undertaking by respondents
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.7
Cases Cited:	Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Mid-Coast Council v Gazecki [2024] NSWLEC 88 Mundi v Hesse [2018] NSWSC 1548 Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 5) [2020] NSWLEC 48
Texts Cited:	Nil
Category:	Costs
Parties:	Mid-Coast Council (Applicant) John Gazecki (First Respondent) Natalie Decorte (Second Respondent)
Representation:	Counsel: A Jucha (Applicant) J Gazecki (Litigant in person, First Respondent) N Decorte (Litigant in person, Second Respondent) Solicitors: Local Government Legal (Applicant) N/A (Respondents)
File Number(s):	2024/00061055