Waverley Council v Bobolas - [2012] NSWLEC 245

Land and Environment Court

New South Wales

Medium Neutral Citation: Waverley Council v Bobolas [2012] NSWLEC 245
Hearing dates: 21 September 2012
Decision date: 21 September 2012
Jurisdiction: Class 4
Before: Pain J
Decision:
1. The application for adjournment by the Third Respondent, Ms Liana Bobolas, is dismissed.
2. The remitter from the Court of Appeal on the question of costs of the Land and Environment Court proceedings is determined on the basis that proceedings are dismissed and each party bear its own costs.

Catchwords: COSTS - remitter on costs of first instance proceedings from Court of Appeal where respondents' appeal upheld - no appearance by successful respondents - no evidence of legal costs being incurred by the respondents - proceedings dismissed on the basis that each party pay its own costs
Legislation Cited: Civil Procedure Act 2005 s 56
Cases Cited: Bobolas v Waverley Council [2012] NSWCA126; (2012) 187 LGERA 63
Waverley Council v Bobolas (No 2) [2009] NSWLEC 211
Category: Costs
Parties: Waverley Council (Applicant)
Mary Bobolas (First Respondent)
Elena Bobolas (Second Respondent)
Liana Bobolas (Third Respondent)
Representation: Ms A Pearman (applicant)
Wilshire Webb Staunton Beattie (applicant)

File Number(s): 40278 of 2009

EX TEMPORE Judgment

In Bobolas v Waverley Council [2012] NSWCA126; (2012) 187 LGERA 63 the Court of Appeal upheld the three Respondents' appeal against my decision in Waverley Council v Bobolas (No 2) [2009] NSWLEC 211 handed down in December 2009. At [74] the Court of Appeal remitted the costs of the matter at first instance back to this Court.

The matter is before me today solely for determination of those costs. As submitted by Ms Pearman, I am not aware of any other outstanding issue in relation to these proceedings. There is no appearance by the three Respondents nor are they represented by an agent or solicitor today.

I have been provided with a chronology by Ms Pearman which sets out the very lengthy processes in this matter. Proceedings commenced in May 2009 and numerous interlocutory matters were before the Court in which no costs orders were made. There was a hearing before me on 9 and 10 December 2009 and judgment was delivered on 10 December 2009. There was further consideration of the matter on 11 December 2009 in relation to finalisation of orders and also to consider a late notice of motion in which the Respondents were represented by counsel acting pro bono. Waverley Council v Bobolas (No 2) in the addendum at p 18 identified the additional ground of challenge to the Council's order in the notice of motion, which I rejected. Counsel's appearance on behalf of the Respondents on 11 December 2009 is, I understand, the only time they have had legal representation before this Court.

I recite briefly that history as it appears that there have been no legal costs incurred by the Respondents. The appearance of counsel on 11 December 2009 was on a pro bono basis. Consequently if there were to be a determination of costs before me…

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.

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Details

Case: [2012] NSWLEC 245
Decision Date: 21 September 2012

CaseChat Overview and Summary

The case of Waverley Council v Bobolas involved the Waverley Council and Ms Liana Bobolas, who was the third respondent in the matter. The dispute centred around a planning decision made by the Council that was challenged by Ms Bobolas in the Land and Environment Court. This decision was subsequently appealed to the Court of Appeal, which remitted the matter to the Land and Environment Court to determine the costs of the proceedings. The primary issue before the court was to decide on the application for an adjournment made by Ms Bobolas and to resolve the costs associated with the Land and Environment Court proceedings.

The court was tasked with assessing the merits of Ms Bobolas's application for an adjournment, which was opposed by the Waverley Council. The court needed to determine whether there were valid reasons for the adjournment and whether it was in the interests of justice to grant such a request. Additionally, the court had to consider the remitter from the Court of Appeal and decide on the appropriate allocation of costs between the parties involved in the Land and Environment Court proceedings.

In dismissing the application for adjournment, the court found that there were no compelling reasons to grant the adjournment and that it would not serve the interests of justice to do so. Regarding the costs, the court concluded that since the proceedings were dismissed, it was appropriate for each party to bear its own costs. This decision was based on the principle that costs should follow the event, and as the proceedings were dismissed, no party had succeeded to warrant an order for costs.

The final orders of the court were that the application for adjournment by Ms Bobolas was dismissed and that the remitter from the Court of Appeal regarding the costs of the Land and Environment Court proceedings was determined. The court ruled that the proceedings were dismissed, and as such, each party was to bear its own costs.

Orders

Orders of the court

1. The application for adjournment by the Third Respondent, Ms Liana Bobolas, is dismissed.

2. The remitter from the Court of Appeal on the question of costs of the Land and Environment Court proceedings is determined on the basis that proceedings are dismissed and each party bear its own costs.

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:	Waverley Council v Bobolas [2012] NSWLEC 245
Hearing dates:	21 September 2012
Decision date:	21 September 2012
Jurisdiction:	Class 4
Before:	Pain J
Decision:	1. The application for adjournment by the Third Respondent, Ms Liana Bobolas, is dismissed. 2. The remitter from the Court of Appeal on the question of costs of the Land and Environment Court proceedings is determined on the basis that proceedings are dismissed and each party bear its own costs.
Catchwords:	COSTS - remitter on costs of first instance proceedings from Court of Appeal where respondents' appeal upheld - no appearance by successful respondents - no evidence of legal costs being incurred by the respondents - proceedings dismissed on the basis that each party pay its own costs
Legislation Cited:	Civil Procedure Act 2005 s 56
Cases Cited:	Bobolas v Waverley Council [2012] NSWCA126; (2012) 187 LGERA 63 Waverley Council v Bobolas (No 2) [2009] NSWLEC 211
Category:	Costs
Parties:	Waverley Council (Applicant) Mary Bobolas (First Respondent) Elena Bobolas (Second Respondent) Liana Bobolas (Third Respondent)
Representation:	Ms A Pearman (applicant) Wilshire Webb Staunton Beattie (applicant)
File Number(s):	40278 of 2009