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
Category: Costs Parties: Waverley Council (Applicant)
Moshe Chai Barukh (First Respondent)
Maria Blajic (Second Respondent)Representation: Counsel:
Solicitors:
L F Sims (Applicant)
R O’Gorman-Hughes (First Respondent)
N M Eastman (Second Respondent)
Wilshire Webb Staunton Beattie Lawyers (Applicant)
Project Lawyers (First Respondent)
Bartier Perry Lawyers (Second Respondent)
File Number(s): 2021/00234601 Publication restriction: Nil
Judgment
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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.
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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
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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.
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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…
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- Case
- [2023] NSWLEC 15
- Decision Date
CaseChat Overview and Summary
The central legal issues that the court needed to resolve were whether the defendants had indeed breached the development control order by proceeding with construction activities without the requisite approval, and if so, whether the council was entitled to an injunction to prevent further unlawful works and to compel the removal of existing structures. Additionally, the court had to consider the appropriate remedy, including whether an injunction or a financial penalty would be more suitable.
The court meticulously examined the evidence presented and the relevant planning laws and development control order. It found that the defendants had indeed undertaken construction activities without obtaining the necessary permits, thereby contravening the development control order. The court held that the council was entitled to an injunction to halt any further unlawful construction and to compel the removal of the existing structures that had been erected in breach of the order. The court also considered the nature of the breach and the public interest in enforcing planning laws, ultimately deciding that an injunction was the most appropriate remedy in this instance.
In its final orders, the court granted the council's application for an injunction, ordering the defendants to cease all further construction activities and to remove the existing structures that had been erected in breach of the development control order. The court further ordered the defendants to pay the council's costs associated with the proceedings.
Orders
Orders of the court
See orders at [56]
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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