Norton v Blacktown City Council - [2009] NSWLEC 214

Land and Environment Court

of New South Wales

CITATION: Norton v Blacktown City Council [2009] NSWLEC 214

PARTIES:
APPLICANT
Chris Norton
RESPONDENT
Blacktown City Council

FILE NUMBER(S): 10144 of 2008

CORAM: Pepper J

KEY ISSUES: COSTS :- application for costs in Class 1 proceedings - principles to be applied - costs ordered

LEGISLATION CITED: Land and Environment Court Rules 2007 r 3.7

CASES CITED: Agonic Holdings Pty Ltd v Lithgow City Council [2009] NSWLEC 34
Coruhlu v Blacktown City Council [2009] NSWLEC 1270

DATES OF HEARING: 15 December 2009

EX TEMPORE JUDGMENT DATE: 15 December 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr R Newton
SOLICITORS
Puleo Lawyers
RESPONDENT
Ms P Hudson (solicitor)
SOLICITORS
Marsdens Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

15 December 2009

10144 of 2008 Norton v Blacktown City Council
EX TEMPORE JUDGMENT

1 HER HONOUR: Before me are two notices of motion:

(a) the first is a notice of motion filed 4 August 2009 by Blacktown City Council (“the council”), which seeks an order that the applicant, currently Mr Chris Norton, pay the council’s costs incurred in the proceedings as previously agreed, fixed in the sum of $29,500 (“the costs motion”); and

1 an order that Alf Coruhlu be joined as a party to the proceedings;

2 an order that the Respondent’s costs incurred in these proceedings be paid by Alf Coruhlu in the sum agreed or as assessed; and

Evidence of Notice

2 Given that Mr Coruhlu is not a party to the proceedings and as there was no evidence of service on Mr Coruhlu before the Court in respect of either of the two notices of motion, with leave Mr Norton gave oral evidence to demonstrate that Mr Coruhlu was aware that the notices of motion were being heard today.

3 His evidence was to the effect that:

(a) at or about 2.30pm on 6 October 2009, he handed documents to the receptionist of Maddocks, the firm then representing Mr Coruhlu, for service upon Mr Coruhlu. The documents comprised:

(i) copies of the notices of motion before the Court today; and

(b) on 15 October 2009, when the matter came before the acting registrar of the Court for the purpose of setting down both notices of motion for hearing, Mr Winram, a solicitor from Maddocks, appeared on behalf of Mr Coruhlu and was present when the motions were set down for hearing on 15 December 2009; and

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.

Keep reading for free

Create a free CaseChat account to read Norton v Blacktown City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWLEC 214
Decision Date: 15 December 2009

CaseChat Overview and Summary

In the case of Norton v Blacktown City Council, the applicant, Mr Chris Norton, sought to discontinue proceedings against the Blacktown City Council in relation to a development application. The Council had filed a motion seeking to enforce an agreement to pay the Council's costs, while the applicant sought to have another party, Mr Alf Coruhlu, held responsible for those costs. The court considered the principles of costs in Class 1 proceedings, as outlined in the Land and Environment Court Rules 2007. The court found that the applicant's conduct was unreasonable, which justified the making of a costs order. Consequently, the court ordered the applicant to pay the Council's costs in the sum of $29,500, as previously agreed, and the costs of the motion.

The central legal issue in this case was whether it was fair and reasonable for the court to make a costs order against the applicant in the circumstances. The court considered the principles underpinning the presumptive rule that costs should lie where they fall in Class 1 proceedings. It found that the applicant's unreasonable conduct, such as the failure to give notice of discontinuance or the attempt to tender further amended plans without reason, justified the making of a costs order. The court also noted that the applicant had been the driving force behind the litigation and that there had been no disentitling conduct by the Council.

Orders