Zhang v Harutoonian

[2020] NSWLEC 39

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zhang v Harutoonian [2020] NSWLEC 39

Hearing dates:

24 April 2020

Date of orders:

27 April 2020

Decision date:

27 April 2020

Jurisdiction:

Class 4

Before:

Pain J

Decision:

(1) The proceedings are dismissed.

 

(2) Each party is to pay its costs of the proceedings referred to in order (1).

 

(3) The Applicant is to pay the First Respondent’s costs of this costs hearing.

 (4) The exhibits are returned.

Catchwords:

COSTS – applicant seeks order for dismissal of proceedings and costs – default costs order under Uniform Civil Procedure Rules 2005 that applicant pay costs unless otherwise order made - no unreasonable behaviour by respondent justifying an otherwise order – no capitulation by respondent justifying otherwise order

Legislation Cited:

Lane Cove Local Environmental Plan 2009 cl 4.6
Uniform Civil Procedure Rules 2005 r 12.1

Cases Cited:

Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107
Walker v Siasat [2014] NSWLEC 86

Category:

Costs

Parties:

Jian Wen Zhang (Applicant)
Mouna Harutoonian (First Respondent)
Lane Cove Council (Second Respondent)

Representation:

COUNSEL:
I Hemmings SC (Applicant)
A Pearman (First Respondent)
N/A (Second Respondent)

  SOLICITORS:
Hones Lawyers (Applicant)
Foteades Legal (First Respondent)
Marsdens (Second Respondent)

File Number(s):

19/342094

Judgment

1. The Applicant commenced Class 4 proceedings seeking a declaration of invalidity of a development consent (Consent) granted by Lane Cove Council, the Second Respondent, (the Council) to the First Respondent on 23 September 2019. The approved work is for the demolition of an existing house, carport and swimming pool and construction of a new dwelling and swimming pool.

2. The Applicant has now filed a notice of motion dated 13 February 2020 seeking orders, firstly that the proceedings be dismissed and secondly that the First and Second Respondents pay the Applicant’s costs of the proceedings on the ordinary basis. Where proceedings are dismissed or discontinued the Uniform Civil Procedure Rules 2005 (UCPR) provide for the payment of a defendant’s costs by a plaintiff unless the court otherwise orders. This judgment deals with whether an otherwise order ought be made as against the First Respondent. The Applicant now advises it does not seek costs against the Council.

3. The Applicant relies on the affidavit of Jason Hones solicitor for the Applicant affirmed 13 February 2020. A chronology of events in the proceedings is set out at pars 4-20 including extensive correspondence between the parties exhibited to the affidavit leading up to the surrender of the Consent, which occurred on 30 January 2020.

4. A letter was sent by Mr Hones on 16 October 2019 to the First Respondent advising of the absence of a cl 4.6 application to address the asserted exceedance of the height control in the Lane Cove Local Environmental Plan 2009 (LLEP) with consequential invalidity of the Consent. An undertaking was sought, to be provided by 18 October 2019, that no reliance be placed on the Consent and that a notice…