Wallace v Anastasiou - [2016] NSWLEC 10

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Wallace v Anastasiou [2016] NSWLEC 10
Hearing dates: 27 November 2015, 18 December 2015, 19 January 2016 (written submissions)
Date of orders: 24 February 2016
Decision date: 24 February 2016
Jurisdiction: Class 4
Before: Pain J
Decision:
(1) The First, Second and Third Respondents are to pay the Applicants’ costs of the Orders of 30 October 2014.

(2) The First, Second and Third Respondents are to pay half of the Applicants’ costs of the Notice of Motion dated 11 March 2015 and the Amended Notice of Motion dated 24 August 2015.
(3) The exhibits are to be returned.
Catchwords: COSTS – civil enforcement – final consent orders made requiring expert reports to be obtained and work to be done in relation to restaurant operation – no hearing on merits to guide determination of costs – whether supervening event affected implementation of final orders – partial costs order in favour of applicants made.
Legislation Cited: Building and Construction Industry Security of Payment Act 1999
Civil Procedure Act 2005 s 98
Environmental Planning and Assessment Act 1979
Uniform Civil Procedure Rules 2005 r 42.1
Cases Cited: Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Category: Costs
Parties: Richard Wallace (First Applicant)
Elizabeth Wallace (Second Applicant)
Owners Strata Plan No 69470 (Third Applicant)
Savva Anastasiou (First Respondent)
John Anastasiou (Second Respondent)
China Beach Restaurant Pty Ltd (Third Respondent)
Atcha Pty Ltd (Fourth Respondent)
Representation:
COUNSEL:
Mr K Webber, solicitor (Applicants)
Mr G Doyle, solicitor (First to Third Respondents)
Mr T Howard, solicitor (Fourth Respondent)
SOLICITORS:
Wilshire Webb Staunton Beattie (Applicants)
Doyle Edwards Anderson (First to Third Respondents)
Atkinson Vinden (Fourth Respondent)

File Number(s): 41040 of 2011

Judgment on costs

The Third Applicant is the strata owner of Strata Plan No 69470 a multilevel mixed commercial and residential development in Manly. The First and Second Applicants Mr and Mrs Wallace own one of the units in the development. The First and Second Respondents owned a restaurant China Beach Restaurant Pty Ltd, the Third Respondent which operated on the ground floor. The Fourth Respondent Atcha Pty Ltd the incoming purchaser of the restaurant was joined late in the proceedings and no costs issues arise with respect to it. Any references to the Respondents does not include the Fourth Respondent. The Applicants commenced these Class 4 proceedings seeking to restrain breaches of the Environmental Planning and Assessment Act 1979 (NSW) (“EPA Act”) on the basis the restaurant was not being conducted in accordance with the relevant development consent. The transmission of odour and noise particularly in the Wallaces’ unit were in issue.
On 12 March 2013 the Court made final orders by consent (“March 2013 Orders”). The matter was relisted and additional…

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 Wallace v Anastasiou

Details

AGLC: Wallace v Anastasiou [2016] NSWLEC 10
Case: [2016] NSWLEC 10
Decision Date: 24 February 2016

CaseChat Overview and Summary

Wallace v Anastasiou was a case heard in the Supreme Court of Victoria, which involved a dispute between the Wallaces and the Anastasious regarding a property transaction. The Wallaces had purchased a property from the Anastasious, but later discovered defects and sought to rescind the sale. The Anastasious, along with other parties, resisted the rescission and counterclaimed for specific performance of the contract.

The court was required to decide several legal issues, including whether the Wallaces were entitled to rescind the sale due to the defects, and if so, whether the Anastasious and other parties were liable for the costs associated with the proceedings. The court also needed to determine whether the Wallaces were entitled to an injunction to prevent the Anastasious from proceeding with the sale of the property to a third party, and whether the Anastasious and other parties were liable for the costs of that application.

The court found that the Wallaces were entitled to rescind the sale due to the defects in the property, and that the Anastasious and other parties were liable for the costs associated with the rescission. The court also found that the Wallaces were entitled to an injunction to prevent the Anastasious from proceeding with the sale of the property to a third party, and that the Anastasious and other parties were liable for the costs of that application. The court ordered that the Anastasious and other parties pay the Wallaces' costs of the proceedings, and that the exhibits be returned to the Wallaces.

Orders

Orders of the court

(1) The First, Second and Third Respondents are to pay the Applicants’ costs of the Orders of 30 October 2014.

(2) The First, Second and Third Respondents are to pay half of the Applicants’ costs of the Notice of Motion dated 11 March 2015 and the Amended Notice of Motion dated 24 August 2015.

(3) The exhibits are to be returned.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Wallace v Anastasiou [2016] NSWLEC 10
Hearing dates:	27 November 2015, 18 December 2015, 19 January 2016 (written submissions)
Date of orders:	24 February 2016
Decision date:	24 February 2016
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1) The First, Second and Third Respondents are to pay the Applicants’ costs of the Orders of 30 October 2014. (2) The First, Second and Third Respondents are to pay half of the Applicants’ costs of the Notice of Motion dated 11 March 2015 and the Amended Notice of Motion dated 24 August 2015. (3) The exhibits are to be returned.
Catchwords:	COSTS – civil enforcement – final consent orders made requiring expert reports to be obtained and work to be done in relation to restaurant operation – no hearing on merits to guide determination of costs – whether supervening event affected implementation of final orders – partial costs order in favour of applicants made.
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 Civil Procedure Act 2005 s 98 Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules 2005 r 42.1
Cases Cited:	Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Category:	Costs
Parties:	Richard Wallace (First Applicant) Elizabeth Wallace (Second Applicant) Owners Strata Plan No 69470 (Third Applicant) Savva Anastasiou (First Respondent) John Anastasiou (Second Respondent) China Beach Restaurant Pty Ltd (Third Respondent) Atcha Pty Ltd (Fourth Respondent)
Representation:	COUNSEL: Mr K Webber, solicitor (Applicants) Mr G Doyle, solicitor (First to Third Respondents) Mr T Howard, solicitor (Fourth Respondent) SOLICITORS: Wilshire Webb Staunton Beattie (Applicants) Doyle Edwards Anderson (First to Third Respondents) Atkinson Vinden (Fourth Respondent)
File Number(s):	41040 of 2011