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…