Waverley Council v Ash Samadi (No 2)

Land and Environment Court

New South Wales

Medium Neutral Citation:

Waverley Council v Ash Samadi and Ors (No 2) [2020] NSWLEC 162

Hearing dates:

13 November 2020

Date of orders:

25 November 2020

Decision date:

25 November 2020

Jurisdiction:

Class 4

Before:

Duggan J

Decision:

See paragraphs 20 and 21

Catchwords:

COSTS – indemnity costs basis – sufficiently delinquent conduct – appropriate to fix quantum by percentage and to specific conduct

Cases Cited:

Oshlack v Richmond River Council (1998) 193 CLR 72

Waverley Council v Ash Samadi and Ors [2020] NSWLEC 67

Category:

Costs

Parties:

Waverley Council (Applicant)
Ash Samadi (First Respondent)
Vladan Blagojevic (Second Respondent)
VB Certifier (Third Respondent)

Representation:

Counsel:
Mr D Miller SC and Mr D Birch (Applicant)
Mr M Astill (First Respondent)
Submitting Appearances (Second and Third Respondents)

Solicitors:
Maddocks Lawyers (Applicant)
Storey & Gough Lawyers (First Respondent)
Submitting Appearances (Second and Third Respondents)

File Number(s):

2020/69186

Publication restriction:

No

Judgment

1. This is an application relating to the costs of the proceedings in Waverley Council v Ash Samadi and Ors [2020] NSWLEC 67 (Samadi (No 1)). I adopt the facts and circumstances as set out in that judgment without repeating them here. I adopt the same defined terms as were used in Samadi (No 1).

2. The Council seeks the following orders against the First Respondent:

1. The Respondent is to pay 40% of the Applicant’s costs of the proceedings on an indemnity basis; and

2. The Respondent is to pay 60% of the Applicant’s costs of the proceedings (as assessed or agreed) on the ordinary basis.

3. Whilst the orders sought refer to “the Respondent”, I understand the Council to only be seeking an order for costs against the First Respondent and not against the Second or Third Respondents.

4. The First Respondent does not oppose an order that he pay the Council’s costs of the proceedings on the ordinary basis. He does oppose the making of an order for indemnity costs as sought by the Council at all, or in the alternative, submits that the proportion of an indemnity order, if made, should be for specified parts of the proceedings but not on a percentage basis, or if on a percentage basis, should be no more than ten percent of the costs of the proceedings.

Council’s submissions

5. The Council submitted that an order for indemnity costs should be made in these proceedings for the reasons set out at [7]-[9] of its written submissions which express the claim in the following way:

7. First, the Council is the public authority responsible for the administration of planning laws within its local government area and brought these proceedings to uphold the integrity of the planning system, rather than to enforce any private interest.

8. Second, Mr Samadi’s conduct which was the subject of the proceedings was “delinquent” in the relevant sense. Mr Samadi’s breaches of the Stop Work Order were contumacious, defiant, deliberate, flagrant, and sustained (continuing after these proceedings were commenced and Mr Samadi had given an undertaking…