Sader v Elgammal - [2025] NSWCA 111

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sader v Elgammal [2025] NSWCA 111
Hearing dates: 20 May 2025
Date of orders: 23 May 2025
Decision date: 23 May 2025
Before: Kirk JA at [1];
Free JA at [2];
Griffiths AJA at [3]
Decision:
(1) Leave to appeal is refused.
(2) The applicants pay the first respondent’s costs.

Catchwords:
COSTS — where Class 4 proceedings in Land and Environment Court dismissed by consent — where on application under UCPR r 42.20(1) primary judge ordered “otherwise” by making no order as to costs — no question of principle or issue of public importance, no clear injustice which is more than merely arguable — leave to appeal refused, with costs

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), s 6.8
Land and Environment Court Act 1979 (NSW), s 58
Uniform Civil Procedure Rules 2005 (NSW), r 42.20

Cases Cited:
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
Gorczynski v Annandale Services Pty Ltd [2004] NSWCA 71
House v The King (1936) 55 CLR 499; [1936] HCA 40
Nadilo v Eagleton [2021] NSWCA 232
Ouwens Casserly Real Estate Pty Ltd v Harcourts South Australia Pty Ltd [2017] SASCFC 69
Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; 199 LGERA 424
Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16; 265 ALR 112
Sader v Elgammal [2022] NSWLEC 107

Texts Cited:
Nil

Category: Principal judgment
Parties: Mark Sader (First Applicant)
Sandra Sader (Second Applicant)
Yasser Elgammal (First Respondent)
Abdul Hammound (Second Respondent)
The State of New South Wales (Third Respondent) (Submitting appearance)
Representation:
Counsel:
DA Hughes and J Farrell (Applicants)
M Seymour SC and J Reid (First Respondent)
Solicitors:
Davidson Legal Consulting Advisory (Applicants)
One Group Legal (First Respondent)

File Number(s): 2024/00478506
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 4

Citation:

[2024] NSWLEC 126

Date of Decision:

29 November 2024

Before:

Pritchard J

File Number(s):

2023/33742

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicants and the first respondent live in adjacent properties in the suburb of Connells Point, NSW. The development of the first respondent’s land gave rise to a series of litigious disputes in the Land and Environment Court (LEC) concerning works prescribed in the underlying construction certificate. That construction certificate underwent several modifications, with its most recent iteration excluding a landscape plan (referred to as Landscape Plan Rev F) and an External Works Plan.

The applicants sought leave to appeal from orders made in relation to Class 4 proceedings in the LEC (which had been dismissed by consent by the parties) where the primary judge declined to give orders as to costs, finding that the removal of those two plans from the construction certificate did…

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 Sader v Elgammal

Details

AGLC: Sader v Elgammal [2025] NSWCA 111
Case: [2025] NSWCA 111
Decision Date: 23 May 2025

CaseChat Overview and Summary

In *Sader v Elgammal*, the applicants sought leave to appeal from an order of the primary judge of the Land and Environment Court who had made no order as to costs in Class 4 proceedings that were dismissed by consent. The applicants contended that the primary judge erred in exercising their discretion to make no order as to costs.

The central legal issue before the Court of Appeal was whether the primary judge had erred in principle or made a manifest error in exercising their discretion to make no order as to costs, despite the proceedings being dismissed by consent. The Court was required to consider whether there was a question of principle, an issue of public importance, or a clear injustice that warranted intervention.

The Court of Appeal determined that the primary judge's decision to make no order as to costs was a proper exercise of discretion. The Court found no question of principle or issue of public importance, nor any clear injustice that was more than merely arguable. Consequently, the Court refused leave to appeal. The applicants were ordered to pay the first respondent's costs of the application for leave to appeal.

Orders

Orders of the court

(1) Leave to appeal is refused.

(2) The applicants pay the first respondent’s costs.

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:	Sader v Elgammal [2025] NSWCA 111
Hearing dates:	20 May 2025
Date of orders:	23 May 2025
Decision date:	23 May 2025
Before:	Kirk JA at [1]; Free JA at [2]; Griffiths AJA at [3]
Decision:	(1) Leave to appeal is refused. (2) The applicants pay the first respondent’s costs.
Catchwords:	COSTS — where Class 4 proceedings in Land and Environment Court dismissed by consent — where on application under UCPR r 42.20(1) primary judge ordered “otherwise” by making no order as to costs — no question of principle or issue of public importance, no clear injustice which is more than merely arguable — leave to appeal refused, with costs
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), s 6.8 Land and Environment Court Act 1979 (NSW), s 58 Uniform Civil Procedure Rules 2005 (NSW), r 42.20
Cases Cited:	Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Gorczynski v Annandale Services Pty Ltd [2004] NSWCA 71 House v The King (1936) 55 CLR 499; [1936] HCA 40 Nadilo v Eagleton [2021] NSWCA 232 Ouwens Casserly Real Estate Pty Ltd v Harcourts South Australia Pty Ltd [2017] SASCFC 69 Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; 199 LGERA 424 Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16; 265 ALR 112 Sader v Elgammal [2022] NSWLEC 107
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Mark Sader (First Applicant) Sandra Sader (Second Applicant) Yasser Elgammal (First Respondent) Abdul Hammound (Second Respondent) The State of New South Wales (Third Respondent) (Submitting appearance)
Representation:	Counsel: DA Hughes and J Farrell (Applicants) M Seymour SC and J Reid (First Respondent) Solicitors: Davidson Legal Consulting Advisory (Applicants) One Group Legal (First Respondent)
File Number(s):	2024/00478506
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 4 Citation: [2024] NSWLEC 126 Date of Decision: 29 November 2024 Before: Pritchard J File Number(s): 2023/33742