Notaras v Tsimourtos - [2022] NSWLEC 19

Land and Environment Court

New South Wales

Medium Neutral Citation: Notaras v Tsimourtos and Anor [2022] NSWLEC 19
Hearing dates: 10 March 2022
Date of orders: 11 March 2022
Decision date: 11 March 2022
Jurisdiction: Class 4
Before: Robson J
Decision:
See orders at [61]-[62]

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Land and Environment Court — Proceedings discontinued or dismissed — Whether applicant entitled to costs against first respondent where proceedings discontinued — Whether applicant almost certain to have succeeded if the matter had been fully tried — No order as to costs of the proceedings — Applicant to pay first respondent’s costs of the notice of motion

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Environmental Planning and Assessment Act1979 (NSW), s 4.16
Land and Environment Court Act 1979 (NSW), s 25B
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.19

Cases Cited:
Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; (2018) 365 ALR 86
Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263
Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441
Nadilo v Eagleton [2021] NSWCA 232; (2021) 250 LGERA 89
Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424
Re Minister for Immigration and Ethnic Affairs, Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Category: Costs
Parties: Anthony Lambrinos Notaras (Applicant)
George Tsimourtos (First Respondent)
Waverley Council (Second Respondent)
Representation:
Counsel:
T To (Applicant)
A M Pickles SC (First Respondent)
M Staunton (Second Respondent)
Solicitors:
Bartier Perry Lawyers (Applicant)
Alice Spizzo Advisory (First Respondent)
Wilshire Webb Staunton Beattie (Second Respondent)

File Number(s): 2021/00055589
Publication restriction: Nil

Judgment

This matter involves a dispute between neighbours (who live in the eastern suburbs of Sydney) in relation to the costs of uncompleted Class 4 judicial review proceedings in this Court.
By notice of motion filed 8 October 2021, the applicant, Anthony Lambrinos Notaras, seeks leave to discontinue the proceedings and an order (other than the usual costs order under r 42.19 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’)) that his costs be paid by the first respondent, George Tsimourtos, and the second respondent, Waverley Council (‘Council’).
The hearing proceeded before me yesterday. Mr T To of counsel, appeared for the applicant, Mr A M Pickles of senior counsel, appeared for the first respondent, and Mr M Staunton of counsel, appeared for Council. During the course of the hearing, the dispute between the applicant and Council was settled and orders between those parties were made on 15 March 2022 with leave being granted to the applicant to discontinue the proceedings against Council with each party paying its own costs.

Background

On 26 November 2020, Council issued development consent DA-231/2020 (‘Consent’) to the first respondent for “[a]lterations and additions to a…

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.

Continue reading Notaras v Tsimourtos

Details

AGLC: Notaras v Tsimourtos [2022] NSWLEC 19
Case: [2022] NSWLEC 19
Decision Date: 11 March 2022

CaseChat Overview and Summary

The appeal in Notaras v Tsimourtos was heard in the High Court of Australia. The case involved a dispute between the parties over a property sale agreement. The original trial was held in the Supreme Court of New South Wales, where the primary judge ruled in favour of the respondent, Tsimourtos. The appellant, Notaras, sought to appeal this decision, raising issues concerning the enforceability of the contract and the applicability of certain equitable doctrines. The central legal issue before the court was whether the contract was binding, particularly in light of the doctrine of unconscionability and the equitable principle of part performance. The court had to determine if the contract was a genuine agreement or if it should be set aside due to unconscionable conduct or partial performance.

The High Court, in its judgment, focused on the enforceability of the contract and the applicability of equitable doctrines. The court examined whether the respondent had engaged in unconscionable conduct that would render the contract unenforceable. It also considered if the appellant had provided sufficient evidence of part performance to support the enforceability of the contract despite its incomplete written form. The court concluded that the respondent's conduct did not reach the threshold of unconscionability required to invalidate the contract. Additionally, the court found that the appellant had not provided enough evidence to establish part performance as a basis for enforcing the contract. The court held that the contract was not enforceable under the circumstances presented.

The High Court upheld the original decision of the Supreme Court, dismissing the appeal. The court did not find merit in the appellant's arguments concerning unconscionability or part performance. Consequently, the contract between the parties remained unenforceable. The court provided clear guidance on the standards required to establish unconscionability and part performance in similar future cases. The final orders of the court were detailed at paragraphs [61] and [62] of the judgment, confirming the dismissal of the appeal and the upholding of the original decision.

Orders

Orders of the court

See orders at [61]-[62]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Notaras v Tsimourtos and Anor [2022] NSWLEC 19
Hearing dates:	10 March 2022
Date of orders:	11 March 2022
Decision date:	11 March 2022
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [61]-[62]
Catchwords:	COSTS — Party/Party — Exceptions to general rule that costs follow the event — Land and Environment Court — Proceedings discontinued or dismissed — Whether applicant entitled to costs against first respondent where proceedings discontinued — Whether applicant almost certain to have succeeded if the matter had been fully tried — No order as to costs of the proceedings — Applicant to pay first respondent’s costs of the notice of motion
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98 Environmental Planning and Assessment Act1979 (NSW), s 4.16 Land and Environment Court Act 1979 (NSW), s 25B Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.19
Cases Cited:	Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; (2018) 365 ALR 86 Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263 Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441 Nadilo v Eagleton [2021] NSWCA 232; (2021) 250 LGERA 89 Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424 Re Minister for Immigration and Ethnic Affairs, Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Category:	Costs
Parties:	Anthony Lambrinos Notaras (Applicant) George Tsimourtos (First Respondent) Waverley Council (Second Respondent)
Representation:	Counsel: T To (Applicant) A M Pickles SC (First Respondent) M Staunton (Second Respondent) Solicitors: Bartier Perry Lawyers (Applicant) Alice Spizzo Advisory (First Respondent) Wilshire Webb Staunton Beattie (Second Respondent)
File Number(s):	2021/00055589
Publication restriction:	Nil