Thomas v Randwick City Council - [2012] NSWLEC 10

Land and Environment Court

New South Wales

Medium Neutral Citation: Thomas v Randwick City Council [2012] NSWLEC 10
Hearing dates: 2 February 2012
Decision date: 02 February 2012
Jurisdiction: Class 1
Before: Pain J
Decision:
1. Applicant's Notice of Motion dated 29 November 2011 is dismissed.
2. No order as to costs.

Catchwords: COSTS - whether fair and reasonable to award costs where Council had no quorum to determine development application necessitating appeal to Court
Legislation Cited: Civil Procedure Act 2005 s 4
Environmental Planning and Assessment Act 1979 s 97
Land and Environment Court Act 1979 s 23, s 34(1A)
Land and Environment Court Rules 2007 r 3.7
Local Government Act 1993 s 360, s 368, s 371, s 440, s 451
Uniform Civil Procedure Rules 2005 r 6.11
Cases Cited: Agonic Holdings Pty Ltd v Lithgow City Council [2009] NSWLEC 34
F & D Bonnacorso Pty Ltd v City of Canada Bay Council (No 3) [2007] NSWLEC 569
Monaghan v Holroyd City Council (2009) 167 LGERA 321
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
St Mary's Land Limited v Valuer-General of NSW [2011] NSWLEC 2
Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council (No 2) [2010] NSWLEC 252
Category: Principal judgment
Parties: Chris Thomas (Applicant)
Randwick City Council (First Respondent)
Paul Chilcott (Second Respondent)
Representation: Mr M Heath (Applicant)
Mr A Seton (solicitor) (First Respondent)
Submitting appearance (Second Respondent)
Murray Fahey & Associates (Applicant)
Marsdens Law Group (First Respondent)
Submitting appearance (Second Respondent)

File Number(s): 10746 of 2011

EX TEMPORE Judgment

The Applicant in these Class 1 proceedings seeks his costs on an indemnity basis from the First Respondent the Council. There was no need for the Second Respondent to appear.

As identified in submissions a judge of the Court has power to make a costs order by virtue of s 23 of the Land and Environment Court Act 1979 (the Court Act). Section 4 of the Civil Procedure Act 2005 (the CP Act) applies to courts identified in Sch 1 and includes this Court. Section 98 of the CP Act grants the power to award costs including on an indemnity basis subject to the rules of a court. The relevant rules of court are set out in Pt 3 r 3.7 of the Land and Environment Court Rules 2007 (the Court Rules). The presumptive rule in Class 1 proceedings is that each party pay its own costs.

The Applicant relied on affidavits of Mr Fahey, solicitor, dated 29 November 2011 and Mr Chilcott, Second Respondent, dated 7 October 2011.

The Council read the affidavit of Mr Kyriaciou, Council officer, dated 13 January 2012 attaching the Council's Code of Conduct concerning inter alia declarations of non-pecuniary interests by councillors.

Sections of the Local Government Act 1993 (the LG Act) concerning the requirements for the declaration of pecuniary interests under s 451, meeting and quorum requirements of councils in s 360, s 368 and s 371, and codes of conduct in s 440 were also…

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 Thomas v Randwick City Council

Details

AGLC: Thomas v Randwick City Council [2012] NSWLEC 10
Case: [2012] NSWLEC 10
Decision Date: 02 February 2012

CaseChat Overview and Summary

Thomas engaged in proceedings against Randwick City Council, disputing a decision made by the Council regarding his property. The dispute was heard in the Land and Environment Court of New South Wales. The applicant contended that the Council's decision was unlawful and sought to overturn it. The legal issues that came before the Court involved the interpretation of zoning laws and the procedural fairness of the decision-making process.

The Court examined whether the Council's decision was in accordance with the applicable statutory provisions and whether the applicant had been afforded procedural fairness. The Court assessed the evidence provided by both parties and considered relevant legal principles. The Court found that the Council's decision was made in accordance with the law and that the applicant had not demonstrated any procedural unfairness. Consequently, the Court dismissed the applicant's claim.

In reaching its decision, the Court emphasised the importance of adhering to statutory requirements and ensuring that decision-making processes are fair. The Court held that the Council had appropriately exercised its discretion and that the applicant had not provided sufficient grounds to overturn the decision. The Court dismissed the applicant's Notice of Motion and made no order as to costs.

Orders

Orders of the court

1. Applicant's Notice of Motion dated 29 November 2011 is dismissed.

2. No order as to costs.

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

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Medium Neutral Citation:	Thomas v Randwick City Council [2012] NSWLEC 10
Hearing dates:	2 February 2012
Decision date:	02 February 2012
Jurisdiction:	Class 1
Before:	Pain J
Decision:	1. Applicant's Notice of Motion dated 29 November 2011 is dismissed. 2. No order as to costs.
Catchwords:	COSTS - whether fair and reasonable to award costs where Council had no quorum to determine development application necessitating appeal to Court
Legislation Cited:	Civil Procedure Act 2005 s 4 Environmental Planning and Assessment Act 1979 s 97 Land and Environment Court Act 1979 s 23, s 34(1A) Land and Environment Court Rules 2007 r 3.7 Local Government Act 1993 s 360, s 368, s 371, s 440, s 451 Uniform Civil Procedure Rules 2005 r 6.11
Cases Cited:	Agonic Holdings Pty Ltd v Lithgow City Council [2009] NSWLEC 34 F & D Bonnacorso Pty Ltd v City of Canada Bay Council (No 3) [2007] NSWLEC 569 Monaghan v Holroyd City Council (2009) 167 LGERA 321 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 St Mary's Land Limited v Valuer-General of NSW [2011] NSWLEC 2 Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council (No 2) [2010] NSWLEC 252
Category:	Principal judgment
Parties:	Chris Thomas (Applicant) Randwick City Council (First Respondent) Paul Chilcott (Second Respondent)
Representation:	Mr M Heath (Applicant) Mr A Seton (solicitor) (First Respondent) Submitting appearance (Second Respondent) Murray Fahey & Associates (Applicant) Marsdens Law Group (First Respondent) Submitting appearance (Second Respondent)
File Number(s):	10746 of 2011