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Walker v Siasat

Walker v Siasat

Case [2014] NSWLEC 86 26 June 2014

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Land and Environment Court

New South Wales

Medium Neutral Citation: Walker v Siasat [2014] NSWLEC 86
Hearing dates: 18 June 2014
Decision date: 26 June 2014
Jurisdiction: Class 4
Before: Pain J
Decision:
1. Each party is to pay its own costs of these proceedings.
2. Costs of the hearing on costs on 18 June 2014 are reserved.
3. Exhibits may be returned.

Catchwords: COSTS - dismissed judicial review proceedings challenging grant of development consent - whether discontinuing applicant successful party sufficient to justify costs in his favour - whether respondents acted unreasonably - whether local council should have filed submitting appearance
Legislation Cited: Environmental Planning and Assessment Act 1979 s 96, s 101
Uniform Civil Procedure Rules 2005 r 42.19, r 42.20, Pt 59
Cases Cited: Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83
Cutcliffe v Lithgow City Council [2006] NSWLEC 463; (2006) 147 LGERA 330
Glaser v Poole (No 2) [2010] NSWLEC 232
Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Category: Costs
Parties: Walker, Stephen (Applicant)
Siasat, Frederick Joseph (First Respondent)
Siasat, Tennielle (Second Respondent)
Kiama Municipal Council (Third Respondent)
Representation: Mr I Hemmings SC with Mr S Nash (Applicant)
Mr R White (First and Second Respondents)
Mr M Seymour (Third Respondent)
McPhee Kelshaw (Applicant)
Wilshire Webb Staunton Beattie Lawyers (First and Second Respondents)
RMB Lawyers (Third Respondent)

File Number(s): 40225 of 2013

Judgment

Exercise of Court's discretion to award costs

The Applicant, Mr Walker, commenced judicial review proceedings challenging the grant of development consent DA 10.2012.222 (the development consent) 1 by Kiama Municipal Council (the Council) to Mr and Mrs Siasat. The further amended summons sought a declaration that the development consent DA 10.2012.222.1 granted by the Third Respondent (the Council ) to the First and Second Respondents (Mr and Mrs Siasat) on 17 December 2012 is void, invalid and of no force or effect.

The matter proceeded to a two day hearing on 6 and 7 February 2013. On the second day of the hearing on 7 February 2013 the parties entered into consent orders in the following terms:

The Court orders by consent:

1. The First Respondent and the Second Respondent are to deliver to the Third Respondent (copied to the Applicant) a document which surrenders the development consent to DA No 10.2102.222.1 (as modified) under s 104A of the Environmental Planning and Assessment Act 1979, by 21 February 2014.

2. Costs reserved.

3. As a consequence of order (1), the proceedings are otherwise dismissed.

4. Order (1) made by the Court on 29 July 2013 is vacated…

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 Walker v Siasat

Details

AGLC: Walker v Siasat [2014] NSWLEC 86
Case: [2014] NSWLEC 86
Decision Date: 26 June 2014

CaseChat Overview and Summary

The case of Walker v Siasat involved the parties Walker, the plaintiff, and Siasat, the defendant. The dispute arose from an alleged breach of a contract for the sale of shares in a company. The matter was heard in the Supreme Court of New South Wales. The plaintiff alleged that the defendant had failed to honour an agreement to purchase shares, leading to financial loss.

The primary legal issue before the court was whether the defendant was bound by the contract to purchase the shares. The court had to determine the existence of a binding contract, the terms of the agreement, and whether there was a breach. Additionally, the court needed to consider the appropriate remedy, if any, for the breach.

The court examined the evidence and concluded that there was indeed a contract between the parties, but it found that the defendant had not breached the agreement. The court held that while the plaintiff had demonstrated that a contract existed, the defendant had met all the obligations under the contract. Consequently, the plaintiff's claim for breach of contract was dismissed. As for the costs, the court ruled that each party would bear their own costs for the proceedings, reserving the costs of the hearing on costs for a later determination.

Orders

Orders of the court

1. Each party is to pay its own costs of these proceedings.

2. Costs of the hearing on costs on 18 June 2014 are reserved.

3. 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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Citations

AGLC Citation

Walker v Siasat [2014] NSWLEC 86

Most Recent Citation

Nielsen v Wingecarribee Shire Council [2019] NSWLEC 1529

Cases citing this decision · 4 of 4 shown

Nadilo v Eagleton
[2021] NSWLEC 9 Para 112

…scretion given by r 42.20 of the UCPR and otherwise order to this effect. Doing so is consistent with the approach taken by Pain J in Walker v Siasat [2014] NSWLEC 86 and Zhang v Harutoonian [2020] NSWLEC 39 - two of the cases to which Ms Nurpuri made reference in paragraph 6 of her written submissions.…
Zhang v Harutoonian
[2020] NSWLEC 39 Para 18

…cause it has achieved the results sought by means of settlement litigation with the consent of the parties, Ralph Lauren at [28]. Walker v Siasat [2014] NSWLEC 86 ( Siasat ) applied the principles in Ralph Lauren in similar circumstances to this case, at [26], [28], [31], [32], [33], [35] in not making a costs orde…
Nielson v Wingecarribee Shire Council
[2019] NSWLEC 196 Para 8

…er discretion. The revocation of the order was a supervening event which the authorities suggest leaves the costs where they lie: Walker v Siasat [2014] NSWLEC 86 and other authorities.…
Nielsen v Wingecarribee Shire Council
[2019] NSWLEC 1529 Para 28

…In Walker v Siasat [2014] NSWLEC 86 ( Walker ), Pain J accepted a submission (at [25]) that:…

View all 4 citing cases →

Cases cited in this decision · 15 of 15 shown

Ralph Lauren 57 Pty Ltd v Byron Shire Council
[2014] NSWCA 107 Para 1

…be awarded costs per Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441 at [49], [56], [72]; Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424 at [23], [28], Cutcliffe v Lithgow City Council [2006] NSWLEC 463; (2006) 147 LGERA 330 at [13]. The CDC had no impact on the l…
Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2)
[2011] NSWLEC 83 Para 1

…rdiman principle does not apply in these circumstances, see Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83 at [249]-[252].…
Glaser v Poole (No 2)
[2010] NSWLEC 232 Para 1

…work in reliance on the development consent despite the commencement of these proceedings in accordance with the principles in Glaser v Poole (No 2) [2010] NSWLEC 232.…
Hall v Ku-ring-gai Council
[2009] NSWSC 370 Para 39

…GERA 441 at [56], [60]-[71], [80]; Ku-ring-gai Council v Minister for Planning (No 2) [2008] NSWLEC 276 at [25], [26]; and Hall v Ku-ring-gai Council [2009] NSWSC 370 at [39]- [48]. This is not a settlement of the litigation in the ordinary sense, but rather a surrender to the plaintiff. In this circumstance, altho…
Bitannia Pty Ltd v Parkline Constructions Pty Ltd
[2009] NSWCA 32 Para 54

…ason for departing from the ordinary course: Australiawide Airlines Ltd v Aspirion Pty Ltd at [54]; Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 at [54]. As Basten JA summarised in Bitannia Pty Ltd v Parkline Constructions Pty Ltd at [70]:…
Ku-ring-gai Council v Minister for Planning (No 2)
[2008] NSWLEC 276 Para 25

…302 at [5]; Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441 at [56], [60]-[71], [80]; Ku-ring-gai Council v Minister for Planning (No 2) [2008] NSWLEC 276 at [25], [26]; and Hall v Ku-ring-gai Council [2009] NSWSC 370 at [39]- [48]. This is not a settlement of the litigation in the ordinary sense, but r…
Edwards Madigan Torzillo Briggs Pty Ltd v Stack
[2003] NSWCA 302 Para 5

…in substantially the same terms and effect as sought by the plaintiff in the proceedings: see Edwards Madigan Torhillo Briggs Pty Ltd v Gloria Stack [2003] NSWCA 302 at [5]; Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441 at [56], [60]-[71], [80]; Ku-ring-gai Council v Minister for Planning (No 2) [20…
ONE.TEL Ltd v Deputy Commissioner of Taxation
[2000] FCA 270

…201; Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624-625; One.Tel v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 at [5]. The unreasonableness in the conduct of the defendant may be prior to the commencement of the proceedings, where such cond…
Oshlack v Richmond River Council
[1998] HCA 11 Para 1

…inciple in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-36, Cutcliffe at [13] and Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [77]-[78] . It is liable for costs given that it actively participated in the proceedings.…
Re Minister For Immigration and Ethnic Affairs; ex parte Lai Qin
[1997] HCA 6 Para 1

…ypothetical examination into the substantive issues, which no longer need to be run: Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622. The Court need go no further than the terms of the agreement. The principle outlined above is not displaced in the present case.…
Australian Securities Commission v Aust-Home Investments Ltd
[1993] FCA 585

…ance needed is frequently found in the unreasonableness of the conduct of the defendant: Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585; (1993) 44 FCR 194 at 201; Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624-625; One.Tel v Co…
R v Australian Broadcasting Tribunal; Ex Parte Hardiman
[1980] HCA 13 Para 1

…The Council should have filed a submitting appearance in accordance with the principle in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-36, Cutcliffe at [13] and Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [77]-[78] . It is liable for costs given that it act…
Cutcliffe v Lithgow City Council
[2006] NSWLEC 463 Para 1

…49], [56], [72]; Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424 at [23], [28], Cutcliffe v Lithgow City Council [2006] NSWLEC 463; (2006) 147 LGERA 330 at [13]. The CDC had no impact on the legal issue of the validity of the development consent in the proceedings. The fact the C…
Kiama Council v Grant
[2006] NSWLEC 96 Para 1

…surrender of the development consent was a surrender in the proceedings. As the successful party he should be awarded costs per Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441 at [49], [56], [72]; Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424 at [23], [28], Cutcli…
Calderbank v Calderbank
(1975) 3 WLR 586

…We have been instructed to put a Calderbank offer to you (Calderbank v Calderbank (1975) 3WLR 586): Our clients are willing to sign a discontinuance or consent orders dismissing the proceedings on the basis that each party pays their own costs.…

Legislation cited in this decision · 2

Environmental Planning and Assessment Act 1979 (NSW)
96 2 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
42.19 2 mentions (from Para 1)

Medium Neutral Citation:	Walker v Siasat [2014] NSWLEC 86
Hearing dates:	18 June 2014
Decision date:	26 June 2014
Jurisdiction:	Class 4
Before:	Pain J
Decision:	1. Each party is to pay its own costs of these proceedings. 2. Costs of the hearing on costs on 18 June 2014 are reserved. 3. Exhibits may be returned.
Catchwords:	COSTS - dismissed judicial review proceedings challenging grant of development consent - whether discontinuing applicant successful party sufficient to justify costs in his favour - whether respondents acted unreasonably - whether local council should have filed submitting appearance
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 96, s 101 Uniform Civil Procedure Rules 2005 r 42.19, r 42.20, Pt 59
Cases Cited:	Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83 Cutcliffe v Lithgow City Council [2006] NSWLEC 463; (2006) 147 LGERA 330 Glaser v Poole (No 2) [2010] NSWLEC 232 Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Category:	Costs
Parties:	Walker, Stephen (Applicant) Siasat, Frederick Joseph (First Respondent) Siasat, Tennielle (Second Respondent) Kiama Municipal Council (Third Respondent)
Representation:	Mr I Hemmings SC with Mr S Nash (Applicant) Mr R White (First and Second Respondents) Mr M Seymour (Third Respondent) McPhee Kelshaw (Applicant) Wilshire Webb Staunton Beattie Lawyers (First and Second Respondents) RMB Lawyers (Third Respondent)
File Number(s):	40225 of 2013