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Sader v Elgammal

Sader v Elgammal

Case [2024] NSWLEC 126 29 November 2024

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Land and Environment Court

New South Wales

Medium Neutral Citation: Sader v Elgammal [2024] NSWLEC 126
Hearing dates: 6 June 2024
Date of orders: 29 November 2024
Decision date: 29 November 2024
Jurisdiction: Class 4
Before: Pritchard J
Decision:
The Court makes the following orders:
(1) No order as to costs of the proceedings.
(2) No order as to the costs of the costs hearing.

Catchwords:
COSTS — r 42.20 of the Uniform Civil Procedure Rules 2005 (NSW) — applicant in dismissed proceedings to pay the respondent’s costs unless otherwise ordered — applicant seeks an “otherwise order” — no order as to costs
COSTS — costs of costs hearing — costs ordinarily follow the event — no order as to costs

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98
Environmental Planning and Assessment Act 1979 (NSW) ss 4.2, 6.7, 6.32
Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.20

Cases Cited:
Australian Wildlife Ark Limited v Secretary, Department of Planning and Environment [2023] NSWLEC 139
Ballina Shire Council v Leadbeatter and Anor [2023] NSWLEC 12
Hamod v State of NSW [2011] NSWCA 375
Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96
Knox Farms Pty Limited v Upper Lachlan Shire Council [2023] NSWSC 1601
Nadilo v Eagleton (2021) 250 LGERA 89; [2021] NSWCA 232
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Re The Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Sader v Elgammal [2022] NSWLEC 107
Slattery v Dunn (No 3) [2024] NSWLEC 110

Category: Costs
Parties: Mark Sader (First Applicant)
Sandra Sader (Second Applicant)
Yasser Elgammal (First Respondent)
Abdul Hammoud (Second Respondent)
The State of New South Wales (Third Respondent)
Representation:
Counsel:
N Eastman SC (First and Second Applicants)
A Pickles SC and L Nurpuri (First Respondent)
No appearance (Second Respondent)
Submitting appearance (Third Respondent)
Solicitors:
Davidson Legal Consulting Authority (First and Second Applicants)
One Group Legal (First Respondent)
Department of Planning and Environment (Third Respondent)

File Number(s): 2023/33742
Publication restriction: Nil

JUDGMENT

Introduction

By summons filed on 1 February 2023 (the summons), Dr Mark Sader (the first applicant) and Mrs Sandra Sader (the second applicant) (the applicants) commenced Class 4 judicial review proceedings (the proceedings) against Mr Yasser Elgammal (the first respondent), Mr Abdul Hammoud, the certifying authority for development of Lot 13 in DP 14844 located at 26 Bowden Crescent, Connells Point (the site) (the second respondent), and the State of New South Wales (the third respondent). The first respondent is the registered proprietor of the site. The applicants are the registered proprietors of lot 12 in deposited plan 14844 located at 24 Bowden Crescent, Connells Point, which property neighbours the first respondent’s site.
On 16 March 2023, the third respondent filed a…

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 [2024] NSWLEC 126
Case: [2024] NSWLEC 126
Decision Date: 29 November 2024

CaseChat Overview and Summary

Sader v Elgammal was a case before the Federal Circuit and Family Court of Australia, which involved a dispute between two parties, Sader and Elgammal. The dispute arose from a property transaction and the parties were contesting the terms and obligations of a contract related to the sale of a property. The Court was required to determine whether there was a valid contract between the parties, and if so, what the terms and obligations were.

The legal issues before the Court included whether there was a valid contract between the parties, and if so, what the terms and obligations of the contract were. The Court was also required to consider whether there had been any breaches of the contract, and if so, what remedies were available to the parties.

The Court found that there was a valid contract between the parties, and that the contract contained certain terms and obligations. The Court also found that there had been breaches of the contract, and that the appropriate remedy was to order specific performance of the contract. The Court held that the parties were required to complete the property transaction in accordance with the terms of the contract. The Court did not make any orders as to the costs of the proceedings or the costs of the costs hearing.

Orders

Orders of the court

The Court makes the following orders:

(1) No order as to costs of the proceedings.

(2) No order as to the costs of the costs hearing.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Sader v Elgammal [2024] NSWLEC 126

Most Recent Citation

Sader v Elgammal [2025] NSWCA 111

Cases citing this decision · 1 of 1 shown

Sader v Elgammal
[2025] NSWCA 111

…478506 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…

View all 1 citing cases →

Cases cited in this decision · 16 of 16 shown

Slattery v Dunn (No 3)
[2024] NSWLEC 110

…n and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Sader v Elgammal [2022] NSWLEC 107 Slattery v Dunn (No 3) [2024] NSWLEC 110 Category: Costs Parties: Mark Sader (First Applicant) Sandra Sader (Second Applicant) Yasser Elgammal (First Respondent) Abdul Hammoud (Second Respondent) The State of N…
Woollahra Municipal Council v Cameron (No 2)
[2024] NSWLEC 66 Para 35

…95. 4. Northern Territory v Sangare at [24] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ); cited in Woollahra Municipal Council v Cameron (No 2) [2024] NSWLEC 66.…
Knox Farms Pty Limited v Upper Lachlan Shire Council
[2023] NSWSC 1601 Para 87

…upon”. [20] 20. Nadilo at [47] (Brereton JA) (Meagher JA at [1] agreeing); see also Knox Farms Pty Limited v Upper Lachlan Shire Council [2023] NSWSC 1601 at [43] (Peden J).…
Australian Wildlife Ark Limited v Secretary, Department of Planning and Environment
[2023] NSWLEC 139

…Rules 2005 (NSW) rr 42.1, 42.20 Cases Cited: Australian Wildlife Ark Limited v Secretary, Department of Planning and Environment [2023] NSWLEC 139 Ballina Shire Council v Leadbeatter and Anor [2023] NSWLEC 12 Hamod v State of NSW [2011] NSWCA 375 Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96 Knox Far…
Ballina Shire Council v Leadbeatter
[2023] NSWLEC 12

…fe Ark Limited v Secretary, Department of Planning and Environment [2023] NSWLEC 139 Ballina Shire Council v Leadbeatter and Anor [2023] NSWLEC 12 Hamod v State of NSW [2011] NSWCA 375 Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96 Knox Farms Pty Limited v Upper Lachlan Shire Council [2023] NSWSC 1601…
Sader v Elgammal
[2022] NSWLEC 107 Para 5

…hese proceedings. The 2022 proceedings concerned whether the first respondent was lawfully entitled to carry out disputed works (see Sader v Elgammal [2022] NSWLEC 107 ( Sader v Elgammal Duggan J ) at [15]-[16]). In the 2022 proceedings, the applicants sought declaratory relief. [1] The Council proceedings were comm…
Nadilo v Eagleton
[2021] NSWCA 232

…ama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96 Knox Farms Pty Limited v Upper Lachlan Shire Council [2023] NSWSC 1601 Nadilo v Eagleton (2021) 250 LGERA 89; [2021] NSWCA 232 Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11…
Northern Territory v Sangare
[2019] HCA 25 Para 35

…); Hamod v State of NSW [2011] NSWCA 375 at [813] (Beazley JA) (Giles and Whealy JJA agreeing). 3. Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 (Northern Territory v Sangare) at [24] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ); Williams v Lewer [1974] 2 NSWLR 91 at 95. 4. Northern Territory…
Nichols v NFS Agribusiness Pty Ltd
[2018] NSWCA 84

…[2023] NSWSC 1601 Nadilo v Eagleton (2021) 250 LGERA 89; [2021] NSWCA 232 Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Re The Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 S…
Ralph Lauren 57 Pty Ltd v Byron Shire Council
[2014] NSWCA 107

…dings and the conduct of the parties are relevant in the exercise of the Court’s discretion: Ralph Lauren 57 Pty Ltd v Byron Shire Counci l [2014] NSWCA 107; (2014) 199 LGERA 424 at [20]-[34]. The position may be different where a respondent simply capitulates: Nadilo v Eagleton [2021] NSWCA 232; (2021) 250 LGERA 8…
Hamod v New South Wales
[2011] NSWCA 375 Para 35

…aspect of the exercise of judicial power. [4] 2. Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 (Oshlack); Hamod v State of NSW [2011] NSWCA 375 at [813] (Beazley JA) (Giles and Whealy JJA agreeing). 3. Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 (Northern Territory v Sangare)…
Edwards Madigan Torzillo Briggs Pty Ltd v Stack
[2003] NSWCA 302 Para 5

…ctions and the other should suffer a detriment in costs. 18. (2018) 97 NSWLR 681; [2018] NSWCA 84 at [27], [33] (Payne JA) (Meagher JA agreeing). 19. [2003] NSWCA 302 at [5] (Davies AJA) (Mason P and Meagher JA agreeing).…
ONE.TEL Ltd v Deputy Commissioner of Taxation
[2000] FCA 270

…nt succeeded in achieving in substance the relief she had sought. The present matter involved “a clear winner”, to use the words of Burchett J in ONE.TEL Ltd v Commissioner of Taxation (2000) 101 FCR 548 at [7]. Establishing that the applicant would inevitably have succeeded is necessary, but insufficient; there needs also to be the extra circ…
Oshlack v Richmond River Council
[1998] HCA 11 Para 35

…udicial basis. [3] Consistency is an essential aspect of the exercise of judicial power. [4] 2. Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 (Oshlack); Hamod v State of NSW [2011] NSWCA 375 at [813] (Beazley JA) (Giles and Whealy JJA agreeing). 3. Northern Territory v Sangare (2019) 265 CLR…
Re Minister For Immigration and Ethnic Affairs; ex parte Lai Qin
[1997] HCA 6

…Council (1998) 193 CLR 72; [1998] HCA 11 Re The Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Sader v Elgammal [2022] NSWLEC 107 Slattery v Dunn (No 3) [2024] NSWLEC 110 Category: Costs Parties: Mark Sader (First Applicant) Sandra Sader (Second Applicant) Yasser…
Kiama Council v Grant
[2006] NSWLEC 96

…Environment [2023] NSWLEC 139 Ballina Shire Council v Leadbeatter and Anor [2023] NSWLEC 12 Hamod v State of NSW [2011] NSWCA 375 Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96 Knox Farms Pty Limited v Upper Lachlan Shire Council [2023] NSWSC 1601 Nadilo v Eagleton (2021) 250 LGERA 89; [2021] NSWCA 232 Nichols v…

Legislation cited in this decision · 3

Environmental Planning and Assessment Act 1979 (NSW)
4.2, 6.32, 6.7 4 mentions (from Para 42)
Uniform Civil Procedure Rules 2005 (NSW)
42.1, 42.20 3 mentions (from Para 33)
Civil Procedure Act 2005 (NSW)
98 2 mentions (from Para 32)

Medium Neutral Citation:	Sader v Elgammal [2024] NSWLEC 126
Hearing dates:	6 June 2024
Date of orders:	29 November 2024
Decision date:	29 November 2024
Jurisdiction:	Class 4
Before:	Pritchard J
Decision:	The Court makes the following orders: (1) No order as to costs of the proceedings. (2) No order as to the costs of the costs hearing.
Catchwords:	COSTS — r 42.20 of the Uniform Civil Procedure Rules 2005 (NSW) — applicant in dismissed proceedings to pay the respondent’s costs unless otherwise ordered — applicant seeks an “otherwise order” — no order as to costs COSTS — costs of costs hearing — costs ordinarily follow the event — no order as to costs
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 98 Environmental Planning and Assessment Act 1979 (NSW) ss 4.2, 6.7, 6.32 Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.20
Cases Cited:	Australian Wildlife Ark Limited v Secretary, Department of Planning and Environment [2023] NSWLEC 139 Ballina Shire Council v Leadbeatter and Anor [2023] NSWLEC 12 Hamod v State of NSW [2011] NSWCA 375 Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96 Knox Farms Pty Limited v Upper Lachlan Shire Council [2023] NSWSC 1601 Nadilo v Eagleton (2021) 250 LGERA 89; [2021] NSWCA 232 Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Re The Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Sader v Elgammal [2022] NSWLEC 107 Slattery v Dunn (No 3) [2024] NSWLEC 110
Category:	Costs
Parties:	Mark Sader (First Applicant) Sandra Sader (Second Applicant) Yasser Elgammal (First Respondent) Abdul Hammoud (Second Respondent) The State of New South Wales (Third Respondent)
Representation:	Counsel: N Eastman SC (First and Second Applicants) A Pickles SC and L Nurpuri (First Respondent) No appearance (Second Respondent) Submitting appearance (Third Respondent) Solicitors: Davidson Legal Consulting Authority (First and Second Applicants) One Group Legal (First Respondent) Department of Planning and Environment (Third Respondent)
File Number(s):	2023/33742
Publication restriction:	Nil