Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Nadilo v Eagleton [2021] NSWCA 232 Hearing dates: 2 September 2021 Date of orders: 23 September 2021 Decision date: 23 September 2021 Before: Meagher JA at [1];
Brereton JA at [2];
Preston CJ of LEC at [16]Decision: 1. Leave to appeal is granted on the second appeal ground in the Amended Draft Notice of Appeal filed on 18 August 2021.
2. The appeal is upheld.
3. The orders of Moore J of the Land and Environment Court made on 11 February 2021 are set aside.
4. Instead, the respondents are to pay the applicant’s costs of the proceedings in the Land and Environment Court and of the costs motion in the proceedings.
5. The respondents are to pay applicant’s costs of the proceedings in this Court.
Catchwords: COSTS – where Class 4 proceedings in Land and Environment Court dismissed by consent – where on application under UCPR r 42.20(1) primary judge ordered “otherwise” by making no order as to costs – where notwithstanding consent orders applicant clearly successful party – whether manifest error in failing to order respondents pay applicant’s costs of proceedings
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) s 4.2
Protection of the Environment Operations (Noise Control) Regulation 2017 (NSW), cll 45(a), 53(1)(a)
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW), cll 2.6, 2.46B(a1)
Uniform Civil Procedure Rules 2005 (NSW), r 42.20
Cases Cited: Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333
Commonwealth v Gretton [2008] NSWCA 117
Fordyce v Fordham (2006) 67 NSWLR 497; [2006] NSWCA 274
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lee Environmental Planning Pty Ltd v Reulie Land Co Pty Ltd [2020] NSWCA 254
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 1; [1986] HCA 33
Minister for Immigration and Ethnic Affairs, Re; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Ohn v Walton (1995) 36 NSWLR 77
ONE.TEL Ltd v Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270
Ralph Lauren 57 Pty Ltd v Byron Shire Council (2014) 199 LGERA 424; [2014] NSWCA 107
Category: Principal judgment Parties: Ms Deborah Nadilo (Applicant)
Ms Sally Eagleton (First Respondent)
Mr Jason Eagleton (Second Respondent)Representation: Counsel:
Solicitors:
Mr A Pickles SC, with Ms A Pearman (Applicant)
Mr N Eastman, with Ms L Nurpuri (Respondent)
Stacks Law Firm (Applicant)
Voice Lawyers (Respondent)
File Number(s): 2021/45396 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Land and Environment Court
- Jurisdiction:
- Class 4
- Citation:
- Date of Decision:
- 11 February 2021
- Before:
- Moore J
- File Number(s):
- 2020/134029
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant and the respondents are neighbours in the residential suburb of Wangi Wangi, NSW. The respondents had installed…
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- AGLC
- Nadilo v Eagleton [2021] NSWCA 232
- Case
- [2021] NSWCA 232
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the primary judge had made a manifest error in failing to order the respondents to pay the applicant's costs of the proceedings, notwithstanding the consent dismissal. This required the Court to consider the principles governing the award of costs in circumstances where parties have agreed to dismiss proceedings, but the success of one party is otherwise clear.
The Court of Appeal found that the primary judge had erred in making no order as to costs. It applied the general principle that a successful party should ordinarily be awarded their costs, and that a departure from this principle requires justification. The Court determined that the consent dismissal did not, in itself, negate the applicant's success or provide a sufficient reason to depart from the usual rule. Consequently, the appeal was upheld, the primary judge's costs order was set aside, and the respondents were ordered to pay the applicant's costs in both the Land and Environment Court and the Court of Appeal.
Orders
Orders of the court
1. Leave to appeal is granted on the second appeal ground in the Amended Draft Notice of Appeal filed on 18 August 2021.
2. The appeal is upheld.
3. The orders of Moore J of the Land and Environment Court made on 11 February 2021 are set aside.
4. Instead, the respondents are to pay the applicant’s costs of the proceedings in the Land and Environment Court and of the costs motion in the proceedings.
5. The respondents are to pay applicant’s costs of the proceedings in this Court.
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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