Sutherland Shire Council v Obradovic
[2001] NSWLEC 69
•03/14/2001
Land and Environment Court
of New South Wales
CITATION: Sutherland Shire Council v Obradovic [2001] NSWLEC 69 PARTIES: APPLICANT
RESPONDENT
Sutherland Shire Council
ObradovicFILE NUMBER(S): 40236 of 1998 and 40074 of of 2000 CORAM: Pearlman J KEY ISSUES: Costs :- in class 4 LEGISLATION CITED: Local Government Act 1993 s 124, s 181 CASES CITED: DATES OF HEARING: 14/03/2001 EX TEMPORE
JUDGMENT DATE :
03/14/2001LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr S M Berveling
SOLICITORS
Abbott Tout
in person
SOLICITORS
N/A
JUDGMENT:
IN THE LAND AND 40236 of 1998 and 40074 of 2000
ENVIRONMENT COURT
Pearlman J
OF NEW SOUTH WALES 14 March 2001
- Applicant
Respondent
1. There are two notices of motion which relate to the matter of costs. One, which is the first in time, is Mr Obradovic’s notice of motion seeking that the applicant, that is, the council, pay his costs of the proceedings.
2. The cost order which Mr Obradovic, the respondent, seeks is prayer 2 of the notice of motion;
2. Order that the applicant pay respondent costs.
(Prayer 1 is the subject of an earlier judgment (see Sutherland Shire Council v Obradovic [2001] NSWLEC 68)).
3. The second notice of motion, which is second in time, is the council’s opposing motion seeking an order that Mr Obradovic pay the council’s costs of the proceedings.
4. Mr Berveling, appearing for the council, has made it clear that the council does not resile from its notice of motion. However in view of the evidence and submissions that were put to the Court today in relation to proceedings 40074/00 and 40236/98, involving the respondent’s claim under s 181 of the Local Government Act 1993 (see the Court’s earlier judgment referred to above), Mr Berveling submitted that neither notice of motion should be pursued, because the course of the proceedings may have been different if certain evidence had been available to the Court on 14 November 2000.
5. Mr Obradovic stated firstly, that the evidence to which Mr Berveling alluded was in fact available. Secondly, he submitted that there should have been better communication between the council and himself, and that there was probably a clash of two different cultures. Mr Obradovic has felt, that he has been, to use his words, “bossed around” by the relevant council officer, and has been threatened in correspondence with the council, and he has tendered documents in which he has expressed that feeling.
6. I am very sympathetic to Mr Obradovic’s point of view. I think there has been a clash of cultures, I think there has been a lack of communication, and I think that there has been a series of positions taken by both the council and Mr Obradovic which have led to this litigation. Because I think that the litigation has come about in this way, it is appropriate that I deal with the notices of motion in the way that Mr Berveling has implicitly suggested, and that is that I make no order as to costs.
7. Strictly speaking in matters such as these, that is, class 4 proceedings, costs follow the event, which means that the party who is successful gets an award of costs in his or her favour. In these proceedings, as a result of the hearing on 14 November 2000, the council was successful. It obtained a declaration that the order under s 124 of the Local Government Act had not been complied with by the respondent and it obtained orders requiring the respondent to take certain steps of rectification.
8. But in the circumstances of the poor communication between the parties, the misunderstandings, and the difficulties which Mr Obradovic has faced in his relationship with the council, I think the just and fair course is not to order him to pay any costs of the council, but also not to require the council to pay his costs.
9. I think it is fair and just that the costs lie where they have arisen, that is, that each party should meet their own costs.
10. I therefore dismiss the council's notice of motion. I dismiss Mr Obradovic's notice of motion so far as concerns prayer 2. All the exhibits may be returned.
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