Monaghan v Holroyd City Council

Case [2009] NSWLEC 112


Reported Decision: 167 LGERA 321

Land and Environment Court


of New South Wales


CITATION: Monaghan v Holroyd City Council; Holroyd City Council v Monaghan [2009] NSWLEC 112
PARTIES:

The Class 1 matters
APPLICANT
Peter Monaghan
RESPONDENT
Holroyd City Council

The Class 4 matter
APPLICANT
Holroyd City Council
FIRST RESPONDENT
Peter Monaghan
SECOND RESPONDENT
MGF Holdings Pty Ltd
THIRD RESPONDENT
Monaghan & Gleeson Funeral Directors Pty Ltd
FILE NUMBER(S): 11315 of 2007; 11316 of 2007; 10574 of 2008; 10575 of 2008; 40122 of 2008
CORAM: Sheahan J
KEY ISSUES: COSTS :- related proceedings in classes 1 and 4, alleged illegal use of premises, reasonableness of the conduct of parties and solicitors, "successful" party in litigation, Calderbank principles, indemnity costs
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land & Environment Court Rules 2007
Uniform Civil Procedure Rules 2005
Holroyd Local Environmental Plan 1991
CASES CITED: Arden Anglican School v Hornsby [2008] NSWLEC 103; (2008) 158 LGERA 224
Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194
Australiawide Airlines Ltd t/as Regional Express v Aspirion Pty Ltd [2006] NSWCA 365
Brent v Levick [2009] NSWLEC 40
Calderbank v Calderbank [1975] 3 A11 ER 333
Canterbury City Council v Roads and Traffic Authority of New South Wales [2004] NSWLEC 536
Clark & Davis v Wollongong City Council (No.2) [2008] NSWLEC 226
Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No.2) [2000] FCA 602
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Fordyce v Fordham (2006) 67 NSWLR 497
Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441
Latoudis v Casey (1990) 170 CLR 534
Leichhardt Municipal Council v Green [2004] NSWCA 341
McCrohon v P J Gann [2009] NSWLEC 8
Monaghan v Holroyd City Council [2008] NSWLEC 1300
Monaghan v Holroyd City Council [2008] NSWLEC 1353
Newcastle City Council v Wescombe [2008] NSWLEC 301
One.Tel Ltd & Ors v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Port Stephens Council v Sansom [2007] NSWCA 299; (2007) 156 LGERA 125
Ray Fitzpatrick Pty Limited v Minister for Planning (No.5) [2008] NSWLEC 183
Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
Residents Against Improper Development Inc v Chase Property Investments Ltd [2006] NSWCA 323; (2006) 149 LGERA 360
Seven Network Limited v News Limited [2007] FCA 1062
South Eastern Sydney Area Health Service v King [2006] NSWCA 2
Universal Childcare Pty Ltd v Leichhardt Municipal Council [2008] NSWLEC 277
White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 910
Woollahra Municipal Council v Goldberg [2009] NSWLEC 32
DATES OF HEARING: 23 February 2009,
27 February 2009 (written submissions),
19 March 2009 (written submissions).
 
DATE OF JUDGMENT: 

8 July 2009
LEGAL REPRESENTATIVES:

Matters 11315 & 11316 of 2007 and 10574 & 10575 of 2008
APPLICANT
Mr G McKee, Solicitor of
McKees Legal Solutions

RESPONDENT
Mr S Kalfas…

Continue reading Monaghan v Holroyd City Council

Sign in free to access the full text

Details
AGLC
Monaghan v Holroyd City Council [2009] NSWLEC 112
Case
[2009] NSWLEC 112
Decision Date

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard a series of proceedings involving Mr. Peter Monaghan and the Holroyd City Council, with the primary disputes centering on allegations of illegal use of residential properties for commercial and public worship purposes. The court examined five separate matters, including class 1 and class 4 proceedings, which were interconnected and stemmed from an investigation into Monaghan’s use of his properties. The litigation history was extensive, with numerous applications, appeals, and negotiations between the parties. The court was tasked with determining the costs associated with these proceedings.

The legal issues primarily revolved around the principles of indemnity costs, the application of the Calderbank principles, and the reasonableness of the parties' conduct throughout the litigation. The court considered whether the Council was entitled to costs as the "successful" party, and whether Monaghan’s conduct warranted a costs order against him. The court also scrutinized the conduct of both parties, the effectiveness of settlement offers, and the proportionality of the costs incurred.

The court concluded that the Council was not the successful party in the litigation as a whole, given the concessions it made and the limited advancement of its position through the class 4 proceedings. The court found Monaghan's conduct to be reasonable, particularly in defending against the allegations and challenging the Council’s orders. The unreasonable and disproportionate conduct of the Council in pursuing the class 4 proceedings was highlighted, particularly the unnecessary escalation of costs. The Calderbank offers made by the Council were deemed not to be genuine offers of compromise.

Accordingly, the court ordered that Monaghan be awarded costs in the class 4 proceedings, and that the Council pay Monaghan’s costs for all five applications. This decision underscored the importance of proportionality in costs, the reasonableness of the parties' conduct, and the application of the Calderbank principles in determining indemnity costs.

Orders

Orders of the court

Full text does not contain this section.

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.