R v Hookey

[2018] NSWCA 147

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Council of the City of Ryde v Sally Haddad (as executrix of the estate of the late Dr Jim Haddad) (No 2) [2018] NSWCA 147
Hearing dates:	On the papers
Decision date:	12 July 2018
Before:	McColl JA, Gleeson JA, Sackville AJA
Decision:	The respondent pay the Council’s costs of the appeal (including the costs of the application for leave to appeal).
Legislation Cited:	Standard Instrument (Local Environmental Plans) Order 2006
Cases Cited:	Council of the City of Ryde v Haddad executor of the estate of Dr Haddad [2018] NSWCA 35
Category:	Costs
Parties:	Council of the City of Ryde (Appellant) Sally Haddad (as executrix of the estate of the Late Dr Jim Haddad) (Respondent)
Representation:	Counsel: Mr A Pickles SC / Ms A Pearman (Appellant) Mr T Southwell-Keely (Respondent)   Solicitors: Planning Law Solutions (Appellant) Owen Hodge Lawyers (Respondent)
File Number(s):	2017/217081
Decision under appeal	Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 1 Citation: [2017] NSWLEC 70 Date of Decision: 20 June 2017 Before: Sheahan J File Number(s): 2016/29933

Judgment

1. THE COURT: This judgment deals with the costs of the successful appeal by the appellant (the Council). [1] The Council was granted leave to appeal against a decision of a Judge of the Land and Environment Court (L & E Court) on a question of law. The appeal was allowed, with the result that the Council’s appeal to the L & E Court against a decision of a Commissioner granting development consent to the respondent [2] was also allowed.

   1. Council of the City of Ryde v Haddad executor of the estate of Dr Haddad [2018] NSWCA 35 (Principal Judgment).

   2.    The respondent is the executrix of the estate of Dr Haddad, who lodged the original development application.

2. The Court made the following observations in the Principal Judgment concerning costs: [3]

“[33]   As has been noted, the respondent filed a submitting appearance in this Court, submitting to the orders of the Court save as to costs. The appearance was filed well after the Council had filed its written submissions. The Council had no choice but to seek leave to appeal against the orders made by the primary Judge if it wished to challenge those orders. The respondent participated in the contested hearing before the primary Judge.

[34]   For these reasons our present view is that the following additional order should be made:

6. The respondent pay the appellant’s costs of the appeal.”

3.    Principal Judgment at [33]-[34].

3. The respondent was given the opportunity to make further written submissions on costs. She filed brief written submissions which relied on a letter dated 18 December 2017 from her solicitors to the Council’s solicitors, as follows:

“The Respondent is prepared to consent to your client’s case and use the premises only as a medical centre; and for residential purposes as she is entitled pursuant to the Section 149 Certificate. This consent in relation to the definition of the existing use rights is only on the condition that the parties bear their own costs to date. Please obtain instructions from your client as soon as possible. If your client consents to this course, the Respondent is prepared to enter proposed consent orders, agreeing to set aside the judgment made in the Appeal division of the Land and Environment Court; and consent to orders that the existing use rights be defined as a medical centre only; as well as each party bears their own costs of these proceedings.

If your client does not agree to the above proposal, submissions will be made on the hearing date in relation to each party bearing their own costs, under circumstances where the Respondent is prepared to consent to your client’s case after her circumstances have changed; and she has been successful in the Land and Environment Court twice in relation to this matter.”

4. In a subsequent letter dated 2 February 2018, the respondent’s solicitors stated that the respondent was:

“willing to consent to your client having leave to appeal and to consent to orders 1, 2 and 3 in the Draft Notice of Appeal and to an order that each party bear its or her own costs of the appeal and also of the Section 56A appeal heard by Sheehan J [sic] in the Land and Environment Court.”

5. As the Council pointed out in its submissions, the respondent actively participated in the L & E Court proceedings. She argued in support of the (incorrect) interpretation of Standard Instrument (Local Environmental Plans) Order 2006 which the primary Judge accepted. The Council was therefore obliged to seek leave to appeal if it was to challenge the decision of the L & E Court.

6. The Council filed its Summons seeking leave to appeal on 29 August 2017, nearly four months before the letter from the respondent’s solicitors of 18 December 2017 was sent. That letter did not accept that the respondent should pay the Council’s costs incurred to that date. The letter of 2 February 2018 took the same approach to the costs of the proceedings.

7. Furthermore, in order for the appeal to be allowed the Council had to demonstrate in this Court that the application for leave to appeal involved a question of law suitable for the grant of leave. It also had to demonstrate that the primary Judge erred in law. Unless the Council’s appeal succeeded, the respondent would have retained the benefit of the development consent (whether or not she took advantage of it while she retained title) and the decision of the L & E Court would have stood as a precedent on a potentially significant question of construction.

8. In these circumstances, the respondent should pay the costs of the appeal (including the costs of the application for leave to appeal).

**********

Endnotes

Decision last updated: 12 July 2018