Scott v Kogarah Municipal Council - [1988] NSWLEC 3

Land and Environment Court

of New South Wales

CITATION: Scott & Ors v Kogarah Municipal Council & Anor [1988] NSWLEC 3

PARTIES:
APPLICANT
Scott & Ors
RESPONDENT
Kogarah Municipal Council & Anor

FILE NUMBER(S): 40135 of 1987

CORAM: Bignold J

KEY ISSUES: :-

LEGISLATION CITED: Land and Environment Court Act

CASES CITED: Fatsel Pty. Ltd. v. A.C.R. Trading Pty. Ltd. (1985);
Scarborough v. Lew's Junction Stores Pty. Ltd. (1963);
Wilson v. Church (No.2) (1879);
Klinker Knitting Mills Pty. Ltd. v. L'Union Fire Accident and General Insurance Co. Ltd. (1937);
Attorney-General v. Emerson (1889);
Grant v. Banque Franco-Egyptienne (1878)

DATES OF HEARING:

DATE OF JUDGMENT:
05/20/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: The 2nd Respondent has moved the Court for an order staying the taxation of costs ordered by the Court in favour of the successful Applicant in concluded class 4 proceedings pending the final determination of the 2nd Respondent's pending appeal to the Court of Appeal.

The only ground relied upon by the 2nd Respondent in support of its Notice of Motion is that it has filed an appeal against this Court's orders made on 23rd December, 1987 granting the Applicants in the class 4 proceedings declaratory and injunctive relief against the 2nd Respondent.

A few days after the filing of the appeal to the Court of Appeal I made certain costs orders on 15th February, 1988 including an order that the two Respondents pay the Applicants' costs on the hearing of the substantive suit.

Section 59(1) of the Land and Environment Court Act confers express power on this Court to suspend the operation of any relevant order where an appeal has been made to the Court of Appeal until the decision on that appeal.

As I pointed out in Fatsel Pty. Ltd. v. A.C.R. Trading Pty. Ltd. (No. 2) (1985) 58 LGRA 164 guidance as to the proper exercise of the wide judicial discretion conferred by the section is to be obtained from a consideration of the decided cases concerning the inherent and statutory powers of a superior court to stay proceedings especially pending the determination of an appeal in those proceedings.

An allied source of statutory power is to be found in SCR Pt. 44 r5 (applicable to this Court by virtue of s.20(4) of the Land and Environment Court Act and the Rules of Court Pt. 6 r1) - in particular see the cases collected in Paragraph 44.5.3 of Ritchie's "Supreme Court Procedure".

A recent statement of the position established by the decided cases is to be found in the judgment of Dawson J. in Federal Commissioner of Taxation v. Myer Emporium Ltd. (1986) 64 ALR 325 at p.327:-

"Order 70, r12 was amended on 5th December, 1985 and in its new form is the counterpart of similar rules in other jurisdictions. It is well established by authority that the discretion which it confers to order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that 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.

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Details

Case: [1988] NSWLEC 3
Decision Date: 05/20/1988

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Scott and Others versus Kogarah Municipal Council and Another was heard. The applicants, Scott and others, sought declaratory and injunctive relief against the respondents, Kogarah Municipal Council and another, regarding a development site. The core of the dispute involved the enforcement of a costs order in favour of the applicants after the respondents appealed the initial decision.

The legal issues at hand centred on the appropriate exercise of the Court's discretion to stay or suspend the execution of the costs order in light of the pending appeal. The respondents argued that the mere fact of their appeal should be sufficient grounds for a stay of the costs order, while the applicants contended that no special circumstances existed to justify such a stay.

Bignold J examined the relevant statutory provisions and case law concerning the discretionary power to stay proceedings pending appeal. The judge concluded that the mere filing of an appeal was not a sufficient basis for staying the execution of a costs order. The judge found that the respondents had not demonstrated any special circumstances that would justify a stay, and no application had been made to require the solicitor to undertake to repay the costs if the appeal were successful. The judge dismissed the motion for a stay with costs, noting that the applicants, who had borrowed funds to sustain the litigation, would face significant hardship if the costs order were not enforced.

The court's decision underscored the importance of demonstrating specific circumstances to warrant a stay of a costs order, beyond the mere fact of an ongoing appeal. The final order was that the motion to stay the costs order was dismissed, and the respondents were to pay the applicants' costs.

Orders