Palmer v MacDonnell Shire Council

Palmer & Anor v MacDonnell Shire Council [2011] NTCA 4

PARTIES: PALMER, Tony Francis

AND
ELLIS, Marie Elana
v
MACDONNELL SHIRE COUNCIL

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:AP9 of 2010 (20913798)
DELIVERED:  9 June 2011
JUDGMENT OF:  RILEY CJ, BLOKLAND & BARR JJ
APPEALED FROM:  MILDREN J
REPRESENTATION:
Counsel:
First & Second Applicants:          D Bennett QC, P McIntyre & A Tokley
Respondent:  A Wyvill SC, T Anderson
Solicitors:
Appellant:Midena Lawyers
Respondent:  Povey Stirk
Judgment category classification:    C
Judgment ID Number:  Ril1106
Number of pages:  2

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Palmer & Anor v MacDonnell Shire Council [2011] NTCA 4

No. AP9 of 2010 (20913798)
BETWEEN:

TONY FRANCIS PALMER

First Appellant

AND

MARIE ELANA ELLIS
Second Appellant

AND:

MACDONNELL SHIRE COUNCIL

Respondent

CORAM: RILEY CJ, BLOKLAND AND BARR JJ
REASONS FOR JUDGMENT
(Delivered 9 June 2011)
The Court:

On 20 April 2011 this Court dismissed the application for leave to appeal the judgment of a single Judge. The respondent seeks an order that the unsuccessful applicants pay the respondent’s costs of the appeal. The application for costs is opposed by the applicants, who submit that the question of costs should be reserved.
We have received and considered the written submissions of the parties.
Costs ordinarily follow the event. Notwithstanding the submissions of the applicants we see no reason why the respondent should not be awarded its costs of successfully opposing the application for leave to appeal.
However, we consider that the order for costs should be stayed pending judgment in proceeding 135 of 2009, or until further order of this Court.
There will be an order that the unsuccessful applicants pay the costs of the respondent in relation to the application for leave to appeal, such costs to be taxed if not agreed. Enforcement of the order for costs will be stayed pending the judgment in proceeding 135 of 2009, or until further order of this Court.

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CaseChat Overview and Summary

This appeal concerns the decision made by the Supreme Court in relation to the MacDonnell Shire Council’s refusal to allow the Palmers to build a house on their property, specifically their objection to the size and location of the proposed building. The Palmers sought leave to appeal this decision, but their application was dismissed by the Court of Appeal. The Council now seeks an order that the Palmers pay their costs in relation to the unsuccessful appeal. The Palmers oppose this application, arguing that the issue of costs should be reserved until a later stage in the proceedings. The Court considered the written submissions from both parties before making its decision.

The legal issue before the Court was whether the Council should be awarded their costs of opposing the Palmers’ unsuccessful application for leave to appeal. The Court found that ordinarily, costs follow the event, meaning that the unsuccessful party should pay the successful party’s costs. However, the Court also noted that the Palmers had argued that the issue of costs should be reserved. Despite this, the Court found no reason why the Council should not be awarded their costs, as they had successfully opposed the Palmers’ application. The Court then considered the appropriate amount of costs to be awarded, and the appropriate timing of enforcement of that order.

The Court found that the Council should be awarded their costs of opposing the Palmers’ application for leave to appeal. However, the Court also found that the enforcement of that order should be stayed until either the judgment in proceeding 135 of 2009, or until further order of the Court. The Court found that this was appropriate, given the inter-relationship between the different proceedings. The Court then made an order that the Palmers pay the Council’s costs in relation to the unsuccessful appeal, but that enforcement of that order would be stayed until the circumstances outlined above.

In summary, the Court found that the Council was entitled to their costs of opposing the Palmers’ unsuccessful application for leave to appeal. However, the enforcement of that order would be stayed until either the judgment in proceeding 135 of 2009, or until further order of the Court. The Palmers were ordered to pay the Council’s costs in relation to the unsuccessful appeal, but enforcement of that order would be stayed until the circumstances outlined above. This decision ensures that the Council is not left out of pocket for the costs of opposing the Palmers’ unsuccessful appeal, while also taking into account the inter-relationship between the different proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established