Newcastle City Council v Wescombe - [2008] NSWLEC 301

Land and Environment Court

of New South Wales

CITATION: Newcastle City Council v Wescombe [2008] NSWLEC 301

PARTIES:
APPLICANT
Newcastle City Council
RESPONDENT
Rebecca Alice Wescombe

FILE NUMBER(S): 40471 of 2007

CORAM: Pain J

KEY ISSUES: Costs :- exercise of the Court's discretion to award costs where no finding on the merits and proceedings dismissed in part - whether disentitling conduct

LEGISLATION CITED: Civil Procedure Act 2005 s 56
Environmental Planning and Assessment Act 1979
Evidence Act 1995 s 131
Revised Professional Conduct and Practice Rules 1995
Uniform Civil Procedure Rules 2005 r 42.20

CASES CITED: Calderbank v Calderbank [1976] Fam 93
Kiama Council v Grant (2006) 143 LGERA 441
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

DATES OF HEARING: 22 October 2008
23 October 2008

DATE OF JUDGMENT:
27 October 2008

LEGAL REPRESENTATIVES: APPLICANT
Mr M Fraser
SOLICITORS
Sparke Helmore

RESPONDENT
Mr G Carolan
SOLICITORS
Bilbie Dan

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

27 October 2008

40471 of 2007 Newcastle City Council v Wescombe
JUDGMENT ON COSTS

1 Her Honour: These Class 4 proceedings were set down for hearing on 22-24 October 2008. The Amended Class 4 application sought a declaration that the Respondent was in breach of the Environmental Planning and Assessment Act 1979 (the EP&A Act) (prayer 1). It also sought an order that the Respondent undertake certain engineering and landscaping work within 60 days of the order being made (prayer 2). After the opening address commenced the parties engaged in further settlement discussions and ultimately agreed that orders be made by consent. It was unnecessary for the hearing to continue. The orders made were to the effect that the Respondent undertake specified works in a certain timeframe. The orders were made without admission of liability in relation to the breach of the EP&A Act (prayer 1). On the Council’s application the proceedings were otherwise dismissed except as to costs. Each party now seeks part of its costs.

2 The removal of retaining walls, excavation and filling on the Respondent’s land which gave rise to the proceedings took place in November 2006. A landslide occurred in and around the Respondent’s property in April 2007 following heavy rain. These Class 4 proceedings were commenced by the Council on 21 May 2007. A settlement conference was held on 21 April 2008. The first hearing in May was vacated on the Council’s application because the parties had been directing their resources towards settlement and were not ready to proceed to hearing. The Amended Class 4 application was filed on 22 July 2008. A defence was filed on 25 September 2008 stating that the Respondent desired to undertake the work identified by the Council in a joint engineering report but had been prevented from doing so by the Council, and there was a need for remedial work to occur on a defective sewer line as well as additional works by adjoining owners.

3 Both parties appointed…

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: [2008] NSWLEC 301
Decision Date: 27 October 2008

CaseChat Overview and Summary

The case between Newcastle City Council and Rebecca Alice Wescombe involved a dispute over environmental planning and assessment. The Council sought a declaration that Wescombe had breached the Environmental Planning and Assessment Act 1979 and an order for her to undertake engineering and landscaping work on her property. The proceedings were settled by consent orders on the first day of the hearing. Both parties sought costs. The key legal issue was the exercise of the Court's discretion to award costs where no finding on the merits and proceedings dismissed in part, and whether any conduct disentitles a party to costs. The Court found that while the Council's conduct in pressing for a declaration of breach was unreasonable, Wescombe's failure to respond to settlement offers was also unreasonable. However, the Council's error in drafting the amended application led to confusion about the terms of the consent orders, mitigating Wescombe's conduct. The Court ordered that Wescombe recover all her costs in relation to the declaration sought in prayer 1, and that further advice be sought from the parties on the appropriate percentage of total costs to be paid by the Council to Wescombe.

Orders