Wei v Parramatta City Council - [2010] NSWLEC 71

Land and Environment Court

of New South Wales

CITATION: Wei v Parramatta City Council [2010] NSWLEC 71

PARTIES: APPLICANT
Xing Xing Wei
RESPONDENT
Parramatta City Council

FILE NUMBER(S): 10826 of 2009

CORAM: Pain J

KEY ISSUES: COSTS :- whether fair and reasonable to award costs to applicant in exercise of court's discretion

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Rules 2007 r3.7

CASES CITED: Bailey v Oberon Shire Council [2007] NSWLEC 273
Mahenthirarasa v State Rail Authority of New South Wales (2008) 72 NSWLR 273
Universal Childcare Pty Ltd v Leichhardt Municipal Council [2008] NSWLEC 277
Wei v Parramatta City Council [2010] NSWLEC 1046

DATES OF HEARING: 6 May 2009

EX TEMPORE JUDGMENT DATE: 6 May 2010

LEGAL REPRESENTATIVES: APPLICANT
Mr M Baird
SOLICITOR
Barrak Lawyers
RESPONDENT
Mr P Marincowitz (solicitor)
SOLICITOR
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

6 May 2010

10826 of 2009 Wei v Parramatta City Council
EX TEMPORE JUDGMENT

1 Her Honour: In Wei v Parramatta City Council [2010] NSWLEC 1046 development consent was granted to the expansion of the Applicant’s brothel in Rydalmere. The Applicant has filed a Notice of Motion dated 21 April 2010 seeking an order that his costs of the proceedings be paid by the Council. This motion is opposed by the Council.

2 Rule 3.7 of the Land and Environment Court Rules 2007 (the Court Rules) applies. Generally costs are not payable in Class 1 proceedings. Under r 3.7(2) costs are payable if the Court considers it is fair and reasonable to do so. Rule 3.7(3) sets out circumstances where the Court may consider it is reasonable to do so. The Applicant relies on r 3.7(3)(d) and (f). Rule 3.7(3)(d) and (f) state:

(3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following:

(d) that a party has acted unreasonably in the conduct of the proceedings,

…

(f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where:

3 Affidavits of Mr Barrack, solicitor, dated 21 April 2010 and Mr Marincowitz, solicitor, dated 29 April 2010 were read. These provide an outline of the events in the course of the litigation, exhibited the documents filed by the parties such as the Statement of Facts and Contentions and expert reports and correspondence between the parties.

4 A chronology was provided by the Applicant which the Council agrees is accurate, which follows:

28 May 2008 Court grants consent to 2 room brothel at 19 Brodie Street, Rydalmere

5 August 2009 Development application for expansion from 2 rooms to 3 rooms lodged with Council (DA/512/2009).

11 August 2009 DA/512/2009 referred to Council officers for comment and public exhibition.

4 November 2009 Applicant commences proceedings in the Land and Environment Court against deemed refusal.

5 November 2009 Letter Barrak Lawyers (page 08) to Council

11 November 2009 Application…

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: [2010] NSWLEC 71
Decision Date: 6 May 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the applicant Xing Xing Wei sought an order that his costs of the proceedings be paid by the Parramatta City Council. The Council opposed the application. The primary issue before the court was whether it was fair and reasonable to award costs to the applicant in the exercise of the court's discretion. The applicant argued that the Council had acted unreasonably in the conduct of the proceedings and had thrown away costs by abandoning contentions 2-6 in the Statement of Facts and Contentions. The Council maintained that it had acted reasonably throughout the proceedings and that any costs thrown away were relatively small.

The court considered the principles relevant to costs considerations in Class 1 proceedings and noted that the court has wide discretion and should only exercise it to make an order for costs if it considers it fair and reasonable to do so. The court found that the Council had not acted unreasonably in deferring the matter on 14 December 2009 when it had before it the planning officer’s report, which attached the report of Ms Gordon the independent planner and the report of the Council’s Strategic Crime and Corruption officer, Mr Mamouzelos. The court also found that there was no basis to apply r 3.7(f) to the Council’s conduct and that the only basis on which costs could theoretically be ordered was that costs were thrown away by the abandonment of contentions 2-6 by the Council nine days before the hearing. However, the circumstances did not suggest that it was fair and reasonable that the Council pay any costs of the applicant.

The court dismissed the applicant's Notice of Motion and ordered that the applicant is to pay the Council's costs of defending the motion as agreed or assessed.

Orders