Oshlack v Iron Gates Pty Limited - [1997] NSWLEC 40

Land and Environment Court

of New South Wales

CITATION: A OSHLACK v. IRON GATES PTY LIMITED & ANOR No. 40152 of 1996 [1997] NSWLEC 40 (8 April 1997) [1997] NSWLEC 1

PARTIES: A OSHLACK v. IRON GATES PTY LIMITED & ANOR

FILE NUMBER(S): 40152 of 1996

CORAM: Lloyd J

KEY ISSUES: :-

LEGISLATION CITED: Land &; Environment Court Act 1979, s 69
National Parks &; Wildlife Act 1974.

CASES CITED: Donald Campbell &; Co Limited v Pollak (1927) AC 732, ;
Berbette Pty Limitedv Hansa (1976) VR 385, Wyatt v Albert Shire Council (1986) 61 LGRA116;
Lagiullo v Haden Engineering Pty Limited (1978) 1 NSWLR 306 at 308;
Jamal v Secretary, Department of Health (1988) 14 NSWLR 52, at 271

DATES OF HEARING: 8 April 1997

DATE OF JUDGMENT:
04/10/1997

LEGAL REPRESENTATIVES:
L A Ogle (Solr)
First Respondent P R Rigg (Solr)
Second Respondent S Winters

JUDGMENT:

HIS HONOUR: This is an application for costs by the successful applicant following the judgment of Stein J delivered on 6 March 1997.

The judgment of Stein J identifies three key issues:

(1) Whether the development consent for a road, which his Honour

found to be valid in Wilson v Iron Gates Pty Limited &; Anor (40172/96, unreported, 2 December 1996), had lapsed pursuant to s 99 of the Environmental Planning &; Assessment Act 1979;

(2) Whether there had been breaches of the development consent for

subdivision and of conditions of that consent; and

(3) Whether works undertaken by the first respondent were in breach

of s 118D of the National Parks &; Wildlife Act 1974.

Stein J found:

(1) That the development consent for the road had lapsed but in the exercise of the Court's discretion he declined to make a

declaration to that effect;

(2) That there had been substantial breaches of the development consent and of conditions of that consent; and

(3) That the first respondent had breached s 118D of the National Parks and Wildlife Act. His Honour then made declarations and orders consequent upon those findings.

Mr P Rigg, who appeared for the first respondent, submitted that since the applicant was unsuccessful on the first issue then no order for costs should be made in relation to that issue. That issue was, he submitted, a discrete issue which concerned a separate development consent to the consent for subdivision.

Ms S Winters, who appeared for the second respondent, submitted that since the applicant was unsuccessful on the first issue then there should be an order that the applicant pay the costs in relation to that issue. She also submitted that, in relation to those issues on which the applicant was successful, there should be no order for costs against the second respondent since all the declarations and orders made by his Honour were directed to the first respondent.

Although there is a complete discretion as to costs (s 69, Land and Environment Court Act 1979 ) the discretion may not be exercised in an arbitrary manner…

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: [1997] NSWLEC 40
Decision Date: 4 October 1997

CaseChat Overview and Summary

The case of Oshlack v Iron Gates Pty Limited is an application for costs by the successful applicant following a previous judgment by Stein J. The case involved disputes regarding the validity of development consent, breaches of the development consent for subdivision, and compliance with the National Parks and Wildlife Act 1974. The Land and Environment Court of New South Wales, presided over by Lloyd J, was tasked with determining the appropriate allocation of costs among the parties.

The legal issues before the court were centered on whether the development consent for a road had lapsed, whether there were breaches of the development consent for subdivision and its conditions, and whether works undertaken by the first respondent were in breach of the National Parks and Wildlife Act. Stein J had previously found that the development consent for the road had lapsed, although no declaration was made due to a lack of environmental harm. Additionally, Stein J found substantial breaches of the development consent and its conditions, as well as a breach of the National Parks and Wildlife Act by the first respondent. Declarations and orders were made based on these findings.

Lloyd J considered the discretion to award costs, noting that while there is a complete discretion under the Land and Environment Court Act 1979, it must be exercised judicially and in accordance with established principles. The settled practice is that a successful litigant should receive their costs, with the exception of special circumstances. Lloyd J held that the respondents were not wholly successful on the first issue, and therefore, no costs should be awarded for that issue. However, the applicant was successful on the remaining issues. Lloyd J determined that the second respondent, despite not entering a submitting appearance, actively participated in the proceedings and opposed the relief sought. Consequently, Lloyd J ruled that the second respondent, along with the first respondent, should bear the costs of the issues on which the applicant was successful.

The court's final order was that the respondents should pay the applicant's costs, except for those costs relating to the first declaration sought by the applicant. This decision ensures that the successful party is compensated for their efforts, while also considering the active participation of the second respondent in the proceedings.

Orders