Elbaf v Kayellou [2015] NSWLEC 81

Elbaf v Kayellou [2015] NSWLEC 81

The grant of subsequent development consent was a 'supervening event' making the proceedings otiose, justifying parties bearing their own costs in relation to the Council's cross-summons. Council's unreasonable conduct in issuing the s 121B order before seeking a declaration of invalidity rendered it liable for the Elbafs' costs of the summons. There was no effective surrender by the Elbafs, and their conduct did not warrant indemnity costs against them nor an order for costs in Council's favour. The parties' conduct was not unreasonable to a degree meriting departure from these rules.

Jurisdiction
Australia
Judgment Date
20 May 2015
Procedural Posture
Class 4 / Costs Determination After Discontinuance of Proceedings
Outcome
Costs determined; orders as specified at [107]
Legal Topics
['costs After Discontinuance' 'supervening Event in Litigation' 'reasonableness of Conduct in Costs Applications']
['costs' 'environmental Planning'] ['costs After Discontinuance' 'supervening Event in Litigation' 'reasonableness of Conduct in Costs Applications']

Case Brief

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Procedural Posture

Class 4 / Costs Determination After Discontinuance of Proceedings

Legal Issues

  1. 1 ["Whether the usual costs order on discontinuance should be varied due to a 'supervening event' or party conduct" "Whether the Council's conduct warranted departure from the usual costs order" 'Whether indemnity costs should be awarded for costs thrown away due to hearing vacation']

Ratio Decidendi

The grant of subsequent development consent was a 'supervening event' making the proceedings otiose, justifying parties bearing their own costs in relation to the Council's cross-summons. Council's unreasonable conduct in issuing the s 121B order before seeking a declaration of invalidity rendered it liable for the Elbafs' costs of the summons. There was no effective surrender by the Elbafs, and their conduct did not warrant indemnity costs against them nor an order for costs in Council's favour. The parties' conduct was not unreasonable to a degree meriting departure from these rules.

Court Disposition

Costs determined; orders as specified at [107]

Orders

  • ['The costs order made by Beech-Jones AJ on 16 June 2014 is confirmed, on a party-party basis.' "The Council is ordered to pay the Elbafs' costs of their summons on a party-party basis, as agreed or assessed." "The Council is ordered to pay the Elbafs' and Kayellou's costs of the costs hearing before Sheahan J on 15...