Waverley Council v Barukh & Anor

Land and Environment Court

New South Wales

Medium Neutral Citation:

Waverley Council v Barukh and Anor [2023] NSWLEC 15

Hearing dates:

03 November 2022

Date of orders:

28 February 2023

Decision date:

28 February 2023

Jurisdiction:

Class 4

Before:

Robson J

Decision:

See orders at [56]

Catchwords:

COSTS — Application by second respondent for costs in Class 4 proceedings — Second respondent joined to the proceedings by applicant — Where proceedings resolved without a determination on the merits — Where applicant and second respondent achieved in substance the desired result — Where fair and reasonable to make a costs order — Partial costs order made

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Environmental Planning and Assessment Act 1979 (NSW), Pt 1 of Sch 5, s 9.34

Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.2, 42.19, 42.20

Cases Cited:

Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219

Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

Nadilo v Eagleton [2021] NSWCA 232; (2021) 250 LGERA 89

Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424

Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Sze Tu v Lowe (No 2) [2015] NSWCA 91

Category:

Costs

Parties:

Waverley Council (Applicant)
Moshe Chai Barukh (First Respondent)
Maria Blajic (Second Respondent)

Representation:

Counsel:
L F Sims (Applicant)
R O’Gorman-Hughes (First Respondent)
N M Eastman (Second Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Applicant)
Project Lawyers (First Respondent)
Bartier Perry Lawyers (Second Respondent)

File Number(s):

2021/00234601

Publication restriction:

Nil

Judgment

1. Before the Court is a claim by Maria Blajic, the second respondent in Class 4 civil enforcement proceedings commenced by Waverley Council (‘Council’) for her costs of these proceedings which have effectively been settled between Council and Moshe Chai Barukh, the first respondent.

2. For the reasons that follow, I am satisfied that it is appropriate that an order be made that a proportion of Ms Blajic’s costs be paid by Mr Barukh.

Background

3. Mr Barukh is the owner of a property at 70 Edward Street, Bondi. Mr Barukh’s property shares a common boundary with a property at 2 Moore Street, Bondi, owned by Ms Blajic. The entire rear boundary of 70 Edward Street adjoins the side boundary of 2 Moore Street. Mr Barukh’s property also adjoins a Council-owned road and adjacent footpath. At all material times there was a retaining wall situated on, or adjacent to, the shared boundary between Mr Barukh’s property and Ms Blajic’s property.

4. On 22 March 2021, the retaining wall on the boundary between Mr Barukh’s property and Ms Blajic’s property failed and collapsed into 70 Edward Street resulting in…