Shellharbour City Council v Stewart

Land and Environment Court

of New South Wales

CITATION:

Shellharbour City Council v Stewart [2007] NSWLEC 727

PARTIES:

APPLICANT:
Shellharbour City Council

FIRST RESPONDENT:
Helen Stewart

SECOND RESPONDENT:
Geoff Rose

THIRD RESPONDENT:
Leon Cicolini

FILE NUMBER(S):

41097 of 2006

CORAM:

Biscoe J

KEY ISSUES:

Costs :- class 4 proceedings discontinued by applicant before trial without consent - whether power to order respondent to pay applicant's costs and, if so, whether such an order should be made - whether applicant should pay respondent's costs - whether applicant should pay respondent's costs on indemnity basis because it had engaged in unreasonable conduct or because of non-acceptance of settlement offer - whether Calderbank principles relevant where a party offers to settle on basis that other party surrender and pay costs.

LEGISLATION CITED:

Land and Environment Court Act 1979, s 69(2)
Land and Environment Court Rules 1996, Pt 11 r 5, Pt 15 r 7
Local Government Act 1993, ss 664(1), 664(1A)
Local Government Act 1993, s 664(1)

CASES CITED:

Ballina Shire Council v Stubberfield (No 2) [2006] NSWLEC 538;
Calderbank v Calderbank [1975] 3 WLR 586;
Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1;
F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 3) [2007] NSWLEC 569;
Fountain Selected Meats (Sales) v International Produce Merchants Ltd (1988) 81 ALR 397;
Harrison v Schipp [2001] NSWCA 13;
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (No 2) (1993) 46 IR 301;
Jones v Bradley (No 2) [2003] NSWCA 258;
Kiama Council v Grant (2006) 143 LGERA 441;
Latoudis v Casey (1990) 170 CLR 534;
Maule v Liporoni (No 2) (2002) 122 LGERA 216;
Mead v Watson as Liquidator for Hypec Electronics (2005) 23 ACLC 718;
Morrison v Defence Maritime Service Pty Ltd and Ors [2007] NSWLEC 552;
Oshlack v Richmond River Council (1998) 193 CLR 72;
Rosniak v Government Insurance Office (1997) 41 NSWLR 608;
Westpac Banking Corporation v Victor Warren Ollis [2007] NSWSC 1008

DATES OF HEARING:

15/10/2007

 
DATE OF JUDGMENT: 

2 November 2007

LEGAL REPRESENTATIVES:

APPLICANT:
Mr K Connor SC
SOLICITORS
Maddocks

FIRST RESPONDENT:
N/A

SECOND RESPONDENT:
N/A

THIRD RESPONDENT:
N/A

FORMER THIRD RESPONDENT:
Mr G Bassett, barrister
SOLICITORS
Frankel Lawyers

JUDGMENT:

- 13 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

2 November 2007

41097 of 2006

SHELLHARBOUR CITY COUNCIL v STEWART AND ORS.

JUDGMENT

1 HIS HONOUR: These are cross costs applications. Mr Peter Moran was the third respondent in proceedings in class 4 of the Court’s jurisdiction brought by Shellharbour City Council. Before trial, on 26 April 2007, the council filed and served a notice of discontinuance against him without his consent.

2 Mr Moran seeks the following costs orders against the council:

(a) costs on an indemnity basis from 15 December 2006 up to and including 26 April 2007;
(b) alternatively, costs up to and including 4 April 2007 and costs…