Payten and Anor. v Canada Bay Council - [2003] NSWLEC 66

Land and Environment Court

of New South Wales

CITATION: Payten & Anor. v Canada Bay Council & Anor. [2003] NSWLEC 66

PARTIES:
APPLICANT:
Payten & Anor.
RESPONDENT:
Canada Bay Council & Anor.

FILE NUMBER(S): 40162 of 2001

CORAM: Bignold J

KEY ISSUES: Costs :- in class 4 proceedings-discontinued without consent.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 104A
Local Government Act 1993, s 114

CASES CITED: Vanmeld v Fairfield City Council (1999) 46 NSWLR 78;
Re The Minister for Immigration Ex Parte Lai Qin (1997) 186 CLR 622

DATES OF HEARING: 03/07/2002

EX TEMPORE
JUDGMENT DATE :
07/03/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Burrell, Solicitor
SOLICITORS
Burrell
FIRST RESPONDENT
Ms L Finn, Solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

1. This is an application by the Canada Bay Council, the first Respondent in class 4 proceedings, which were concluded by the Applicant filing a Notice of Discontinuance on 4 April 2002 without the consent of the Council. The Council’s application is that the Applicant pay the Council’s costs in the proceedings and the costs on the Motion.

2. The matter has been argued today before me with the Solicitor for the Applicant submitting that in the circumstances of this case there should be no order as to costs in the proceedings in favour of the Council.

3. The proceedings involved a class 4 application for declaratory and injunctive relief in respect of second storey additions to an existing dwelling situated at 58 Burns Crescent, Chiswick. The application was filed on 4 September 2001. It claimed a declaration that the development application was invalid. It also claimed an injunction restraining the second Respondent, being the owner of the aforesaid premises from carrying out building works pursuant to the development consent. There was also a claim upon filing the class 4 application for an interlocutory injunction but that claim to relief was not pressed. However, on 20 December 2001, the Applicant sought an urgent interlocutory injunction restraining the Council from issuing a certificate of occupancy in respect of the said building work. That application was resisted by both Respondents and in an extempore judgement I dismissed the application for that interlocutory relief. Thereafter, the matter proceeded to a number of callovers when directions were given of the final hearing of the case and on 1 February 2002, hearing dates were allocated for the final hearing on 17 and 18 April 2002. As noted earlier on 9 April, Notice of Discontinuance was filed by the Applicant just over a week before the commencement of the allocated hearing. On 14 May 2002, the Court made an order by consent that the Applicant pay the second Respondent’s costs in the agreed sum of $5,000.00. The Council’s Motion claiming costs was filed on 16 April 2002.

4. The Applicant’s Solicitor has informed the Court from the bar table and the Council’s Solicitor accepts that this is the fact, that the Applicant entered into a contract to sell his property shortly prior to the allocated…

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 Payten and Anor. v Canada Bay Council

Details

AGLC: Payten and Anor. v Canada Bay Council [2003] NSWLEC 66
Case: [2003] NSWLEC 66
Decision Date: 07/03/2002

CaseChat Overview and Summary

The Land and Environment Court of New South Wales dealt with an application for costs by Canada Bay Council against the applicants, Payten and another, in the case of Payten and Anor. v Canada Bay Council and Anor. The dispute involved class 4 proceedings which were discontinued without the Council's consent. The primary legal issue before the court was whether the applicants should be ordered to pay the Council's costs in the proceedings, despite the discontinuance without consent. The applicants argued against such an order, contending that there had been no adjudication on the merits and that both parties had conducted themselves reasonably throughout the litigation. The Council, on the other hand, argued that the applicants should be liable for costs due to the belated discontinuance and the evident hopelessness of the case.

The court, Bignold J, reviewed the detailed pleadings, affidavits, and legislative provisions, including the Environmental Planning and Assessment Act 1979 and the Local Government Act 1993. The court noted that the applicants' claims were based on the assertion that the Council failed to provide notice of the development application and building approval, rendering the consent and approval invalid. However, the court found that the applicants' claims were weak and unlikely to succeed, particularly in light of the statutory bar on challenging the development consent under section 104A of the Environmental Planning and Assessment Act. Furthermore, the court considered the applicants' conduct in pursuing the case despite its apparent hopelessness, especially when the development works were nearly complete.

Bignold J concluded that the applicants' discontinuance was untimely and prejudicial to the Council, and that the applicants' conduct throughout the litigation was unreasonable. The court found that the case was "bound to fail and fail utterly," invoking the principles set out in Lai Qin, where the High Court held that in rare cases, even without a final hearing on the merits, a party might be liable for costs if the outcome was virtually certain. Accordingly, the court ordered the applicants to pay the Council's costs in the proceedings and on the hearing of the Motion for costs.

Orders