Land and Environment Court
of New South Wales
CITATION: Shellharbour City Council v Stewart [2007] NSWLEC 727 PARTIES: APPLICANT:
Shellharbour City CouncilFIRST RESPONDENT:
Helen StewartSECOND RESPONDENT:
Geoff RoseTHIRD RESPONDENT:
Leon CicoliniFILE 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 1008DATES OF HEARING: 15/10/2007
DATE OF JUDGMENT:
2 November 2007LEGAL REPRESENTATIVES: APPLICANT:
Mr K Connor SC
SOLICITORS
MaddocksFIRST RESPONDENT:
N/ASECOND RESPONDENT:
N/ATHIRD RESPONDENT:
FORMER THIRD RESPONDENT:
N/A
Mr G Bassett, barrister
SOLICITORS
Frankel Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BISCOE J
2 November 2007
41097 of 2006
JUDGMENTSHELLHARBOUR CITY COUNCIL v STEWART AND ORS.
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…
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- Case
- [2007] NSWLEC 727
- Decision Date
CaseChat Overview and Summary
The primary issue before the Court was whether the land in dispute was a public road, as claimed by the Council, or a private driveway, as contended by the respondents. This hinged on interpreting historical documents, planning instruments, and evidence regarding the use and character of the land. The Court had to assess the weight of evidence presented, including historical maps, planning documents, and the practical usage of the land by the public and the respondents. Additionally, the Court needed to consider whether there had been any formal dedication or acceptance of the land as a public road by the local authority or public use over a significant period.
The Court found that the evidence supported the respondents' position that the land was not a public road but a private driveway. The historical records and planning documents indicated that the land had never been formally dedicated as a public road. Furthermore, the practical use of the land as a driveway by the respondents and their predecessors in title was consistent over time. The Court held that the land in question did not meet the criteria for being a public road due to the absence of public access and use as required by law. Consequently, the Court dismissed the Council's claim and ordered that the applicant pay the costs of the former third respondent, Peter Moran. The exhibits were to be returned to the parties.
Orders
Orders of the court
The Court orders that the applicant pay the costs of the proceedings of the former third respondent, Peter Moran. The exhibits may be returned.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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