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
Texts Cited: Nil
Category: Costs Parties: Mid-Coast Council (Applicant)
John Gazecki (First Respondent)
Natalie Decorte (Second Respondent)Representation: Counsel:
Solicitors:
A Jucha (Applicant)
J Gazecki (Litigant in person, First Respondent)
N Decorte (Litigant in person, Second Respondent)
Local Government Legal (Applicant)
N/A (Respondents)
File Number(s): 2024/00061055
ex tempore JUDGMENT on costs
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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.
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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…
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- Case
- [2024] NSWLEC 103
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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