Refalo v Liverpool City Council - [2025] NSWLEC 108

Land and Environment Court

New South Wales

Medium Neutral Citation: Refalo v Liverpool City Council [2025] NSWLEC 108
Hearing dates: 26 August 2025
Date of orders: 25 September 2025
Decision date: 25 September 2025
Jurisdiction: Class 1
Before: Pain J
Decision:
In matter 2024/00163113:
(1)   The Applicants’ notice of motion seeking costs of the proceedings dated 30 April 2025 is dismissed.
(2)   Each party to pay their own costs of the notice of motion dated 30 April 2025.
In matter 2024/00163114:
(1)   The Applicants’ notice of motion seeking costs of the proceedings dated 30 April 2025 is dismissed.
(2)   Each party to pay their own costs of the notice of motion dated 30 April 2025.

Catchwords:
COSTS – Class 1 appeals of development control orders settled without need for final court determination – development control order issued to stop use of land used for lettuce farming for over thirty years - application for costs by applicants – whether fair and reasonable to order costs - whether local council acted unreasonably in not responding to urgent requests to advise whether any outstanding issues in light of agreement of experts – failing to provide approval documents vital to applicants’ case which local council held – statement of facts and contentions failed to properly identify why the development the subject of the development control orders was unlawful – no prospects of success in relation to portable dwellings as these were not buildings – notice of motion dismissed

Legislation Cited:
Copyright Act 1968 (Cth), s 43
Environmental Planning and Assessment Act 1979 (NSW), ss 8.18, 9.34, Sch 5 Pt 1
Government Information (Public Access) Act 2009 (NSW)
Land and Environment Court Rules 2007 (NSW), r 3.7
Liverpool Local Environmental Plan 1997 (NSW)

Cases Cited:
Coolah Holdings Pty Ltd v Eurobodalla Shire Council (No 2) [2012] NSWLEC 84
Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Port Stephens Council v Sansom (2007) 156 LGERA 125; [2007] NSWCA 299
Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230; [2007] NSWCA 300

Texts Cited:
Land and Environment Court, Classes 1, 2 & 3 Miscellaneous Appeals Practice Note (3 April 2018)

Category: Costs
Parties: David Refalo (First Applicant)
Jannie Refalo (Second Applicant)
Liverpool City Council (Respondent)
Representation:
Counsel:
A Stafford (First and Second Applicants)
M Harker (Respondent)
Solicitors:
Beatty Hughes and Associates (First and Second Applicants)
Liverpool City Council (Respondent)

File Number(s): 2024/00163113
2024/00163114
Publication restriction: Nil

JUDGMENT

The Applicants run a lettuce-growing business in Kemps Creek. That business relevantly traverses two sites, 90 Racemosa Close (90 Racemosa) and 65 Brenda Avenue (65 Brenda). The lettuce growing business commenced on 90 Racemosa in 1998. The business expanded onto 65 Brenda from 2010.
Two development control orders (DCOs) were issued by Liverpool City Council (the Council), one for each lot where the Applicants grow lettuce commercially. The…

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: [2025] NSWLEC 108
Decision Date: 25 September 2025

CaseChat Overview and Summary

The case of Refalo v Liverpool City Council involved two related matters, both heard in the Federal Circuit and Family Court of Australia. The Applicants, presumably Mr. Refalo, sought costs of the proceedings in each matter. The Liverpool City Council was the respondent in both cases. The dispute arose from proceedings related to local government decisions that Mr. Refalo challenged, although the specifics of these decisions are not detailed in the summary.

The central legal issues before the court were whether Mr. Refalo was entitled to the costs of the proceedings he sought against the Liverpool City Council. The court had to assess the circumstances under which costs might be awarded, considering the outcomes of the proceedings and the conduct of the parties involved.

The court dismissed the Applicants' notices of motion seeking costs in both matters. The decision detailed that each party was to bear their own costs for the notices of motion dated 30 April 2025. The reasoning provided by the court for dismissing the motions was not fully outlined in the summary, but it is evident that the court did not find the Applicants' submissions persuasive enough to warrant an award of costs to them. The outcome reflects a cautious approach to awarding costs, ensuring that neither party received financial relief from the other through these motions.

Orders

Orders of the court

In matter 2024/00163113:

(1) The Applicants’ notice of motion seeking costs of the proceedings dated 30 April 2025 is dismissed.

(2) Each party to pay their own costs of the notice of motion dated 30 April 2025.

In matter 2024/00163114:

(1) The Applicants’ notice of motion seeking costs of the proceedings dated 30 April 2025 is dismissed.

(2) Each party to pay their own costs of the notice of motion dated 30 April 2025.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Refalo v Liverpool City Council [2025] NSWLEC 108
Hearing dates:	26 August 2025
Date of orders:	25 September 2025
Decision date:	25 September 2025
Jurisdiction:	Class 1
Before:	Pain J
Decision:	In matter 2024/00163113: (1) The Applicants’ notice of motion seeking costs of the proceedings dated 30 April 2025 is dismissed. (2) Each party to pay their own costs of the notice of motion dated 30 April 2025. In matter 2024/00163114: (1) The Applicants’ notice of motion seeking costs of the proceedings dated 30 April 2025 is dismissed. (2) Each party to pay their own costs of the notice of motion dated 30 April 2025.
Catchwords:	COSTS – Class 1 appeals of development control orders settled without need for final court determination – development control order issued to stop use of land used for lettuce farming for over thirty years - application for costs by applicants – whether fair and reasonable to order costs - whether local council acted unreasonably in not responding to urgent requests to advise whether any outstanding issues in light of agreement of experts – failing to provide approval documents vital to applicants’ case which local council held – statement of facts and contentions failed to properly identify why the development the subject of the development control orders was unlawful – no prospects of success in relation to portable dwellings as these were not buildings – notice of motion dismissed
Legislation Cited:	Copyright Act 1968 (Cth), s 43 Environmental Planning and Assessment Act 1979 (NSW), ss 8.18, 9.34, Sch 5 Pt 1 Government Information (Public Access) Act 2009 (NSW) Land and Environment Court Rules 2007 (NSW), r 3.7 Liverpool Local Environmental Plan 1997 (NSW)
Cases Cited:	Coolah Holdings Pty Ltd v Eurobodalla Shire Council (No 2) [2012] NSWLEC 84 Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 Port Stephens Council v Sansom (2007) 156 LGERA 125; [2007] NSWCA 299 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230; [2007] NSWCA 300
Texts Cited:	Land and Environment Court, Classes 1, 2 & 3 Miscellaneous Appeals Practice Note (3 April 2018)
Category:	Costs
Parties:	David Refalo (First Applicant) Jannie Refalo (Second Applicant) Liverpool City Council (Respondent)
Representation:	Counsel: A Stafford (First and Second Applicants) M Harker (Respondent) Solicitors: Beatty Hughes and Associates (First and Second Applicants) Liverpool City Council (Respondent)
File Number(s):	2024/00163113 2024/00163114
Publication restriction:	Nil