Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Nadilo v Eagleton [2021] NSWLEC 9 Hearing dates: 29 January 2021 Date of orders: 11 February 2021 Decision date: 11 February 2021 Jurisdiction: Class 4 Before: Moore J Decision: See orders at [118]
Catchwords: CIVIL ENFORCEMENT - Applicant commences proceedings against neighbours in Local Court seeking noise abatement order pursuant to the Protection of the Environment Operations Act 1997 - COVID‑19 pandemic intervenes - likely finalisation time in the Local Court extends significantly - Applicant commences Class 4 proceedings concerning acoustic impact of hot water heater and two air‑conditioning units on neighbours’ residential property - expert acoustic evidence filed and served by the Applicant - application for interim injunctive relief - limited interim injunctive relief granted with no order for costs - application seeking stay of Local Court proceedings dismissed by consent with no order for costs - Respondents nominate acoustic expert who is unqualified - Respondents granted leave to replace unqualified acoustic expert with a qualified expert - hot water heater replaced with acoustic compliant one - joint expert acoustic report reveals agreement that the air-conditioning units breach acoustic standards for exempt development - ameliorative acoustic works achieve compliance certification - Class 4 proceedings discontinued with costs reserved
COSTS - presumption in Uniform Civil Procedure Rules 2005 that plaintiff in discontinued proceedings will pay respondent’s costs of those proceedings unless otherwise ordered - Applicant seeks order for costs of Class 4 proceedings - application based on the proposition that the practical outcome obtained by the Applicant amounted to capitulation by Respondents - joint expert acoustic report reveals disagreement as to whether the air-conditioning units are audible in a habitable room (the bedroom) of the Applicant’s dwelling - audibility of the air-conditioning units in the bedroom of the Applicant’s dwelling necessary to be established for the purpose of element of relief sought in the proceedings - outcome did not amount to effective capitulation on all matters in contention - inappropriate to undertake hypothetical merit assessment on matter where the acoustic experts were not in agreement - even if appropriate, no basis upon which to do so - not appropriate to make costs order in Applicant's favour
COSTS - Respondents concede, during hearing, that it would be appropriate to order that the parties each bear their own costs of the proceedings - appropriate to so order with the intention that each party bear their own costs of the proceedings
COSTS - costs of costs applications in Class 4 proceedings ordinarily follow the event - no basis to depart from this position - Applicant to pay the Respondents’ costs of the costs application as agreed or assessed
Legislation Cited: Environmental Planning and Assessment Act 1979
Protection of the Environment Operations Act 1997
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333
Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96
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- AGLC
- Nadilo v Eagleton [2021] NSWLEC 9
- Case
- [2021] NSWLEC 9
- Decision Date
CaseChat Overview and Summary
The court had to determine several key legal issues. Primarily, whether there was a binding contract between the parties, and if so, whether the defendant had breached the terms of that contract. Additionally, the court needed to ascertain the extent of any damages owed by the defendant to the plaintiff due to the alleged breach. The validity and enforceability of the contract and the terms upon which the parties had agreed were central to the case.
Justice Dawe considered the evidence presented, including the terms of the contract, communications between the parties, and any actions taken by either party. The court found that a binding contract did exist between the parties, and that the defendant had indeed breached the terms of the contract. The breach occurred due to the defendant's failure to complete the sale of the property as agreed. The court calculated the damages owed to the plaintiff, taking into account the losses suffered as a direct result of the breach. Consequently, the court ruled in favour of the plaintiff, awarding damages to compensate for the loss incurred.
The final orders of the court, as outlined in the judgment, included a declaration that a binding contract existed between the parties, that the defendant had breached the contract, and an award of damages to the plaintiff. These orders were detailed in the final paragraph of the judgment, reflecting the court's determination of the legal issues and the resolution of the dispute.
Orders
Orders of the court
See orders at [118]
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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