Wallace v Anastasiou [2016] NSWLEC 10

Wallace v Anastasiou [2016] NSWLEC 10

The October 2014 Orders substantially had the effect claimed by the Applicants and supplemented the March 2013 Orders requiring work by the First, Second and Third Respondents, so those Respondents should pay the Applicants' costs of those orders. The Applicants reasonably filed the 11 March 2015 Notice of Motion because much work required by the March 2013 and October 2014 Orders was undone and the Respondents remained bound despite closure, sale and removal of the exhaust fan; however, the Applicants did not obtain much of the relief sought, delayed in accepting that some works were complete and sought some unreasonable relief, so only half of their costs of the 2015 Applicant motions...

Jurisdiction
Australia
Judgment Date
24 February 2016
Procedural Posture
Class 4 Civil Enforcement Proceedings; Costs / Judgment on Costs After Final Consent Orders and Competing Notices of Motion Concerning Working Out Earlier Consent Orders
Outcome
Applicants awarded costs in part against the First, Second and Third Respondents; Respondents' claims for costs and indemnity costs rejected.
Legal Topics
['costs Discretion' 'consent Orders' 'working Out Final Orders' 'environmental Planning and Assessment Act Compliance' 'restaurant Noise and Odour' 'indemnity Costs']
['costs' 'civil Enforcement' 'planning and Environment'] ['costs Discretion' 'consent Orders' 'working Out Final Orders' 'environmental Planning and Assessment Act Compliance' 'restaurant Noise and Odour' 'indemnity Costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Class 4 Civil Enforcement Proceedings; Costs / Judgment on Costs After Final Consent Orders and Competing Notices of Motion Concerning Working Out Earlier Consent Orders

Legal Issues

  1. 1 ["Whether the First, Second and Third Respondents should pay the Applicants' costs of the Orders of 30 October 2014." "Whether the costs of the Applicants' Notice of Motion dated 11 March 2015 and Amended Notice of Motion dated 24 August 2015 should be paid by the First, Second and Third Respondents." "Whether the Applicants should pay the First to Third Respondents' costs of the Respondents' Notice of Motion dated 20 April 2015 and Amended Notice of Motion dated 14 August 2015." 'Whether the sale of the restaurant, closure of the business and removal of the kitchen exhaust fan were supervening events affecting the costs outcome.' "Whether any indemnity costs order should be made based on the Respondents' settlement offer on 15 October 2015."]

Ratio Decidendi

The October 2014 Orders substantially had the effect claimed by the Applicants and supplemented the March 2013 Orders requiring work by the First, Second and Third Respondents, so those Respondents should pay the Applicants' costs of those orders. The Applicants reasonably filed the 11 March 2015 Notice of Motion because much work required by the March 2013 and October 2014 Orders was undone and the Respondents remained bound despite closure, sale and removal of the exhaust fan; however, the Applicants did not obtain much of the relief sought, delayed in accepting that some works were complete and sought some unreasonable relief, so only half of their costs of the 2015 Applicant motions...

Court Disposition

Applicants awarded costs in part against the First, Second and Third Respondents; Respondents' claims for costs and indemnity costs rejected.

Orders

  • ["The First, Second and Third Respondents are to pay the Applicants' costs of the Orders of 30 October 2014." "The First, Second and Third Respondents are to pay half of the Applicants' costs of the Notice of Motion dated 11 March 2015 and the Amended Notice of Motion dated 24 August 2015." 'The exhibits are to be...