Sader v Elgammal [2024] NSWLEC 126

Sader v Elgammal [2024] NSWLEC 126

There was no effective surrender or capitulation by the first respondent—the proceedings were dismissed by consent, and no order for relief was made. The applicants were not almost certain to have succeeded had the matter been fully tried. Nor did the first respondent act unreasonably in defending the proceedings, as no formal defence was filed, no active opposition through prolonged litigation steps was established, and all progress occurred by consent. In these circumstances, the appropriate order is that there be no order as to costs, both for the proceedings and the costs hearing.

Parties
First Applicant: Mark Sader; Second Applicant: Sandra Sader; First Respondent: Yasser Elgammal; Second Respondent: Abdul Hammoud; Third Respondent: The State of New South Wales
Jurisdiction
Australia
Judgment Date
29 November 2024
Procedural Posture
Judicial Review Class 4 / Costs Determination After Dismissal by Consent
Outcome
No order as to costs
Legal Topics
Costs Discretion, Effect of Dismissal on Costs, Judicial Review, Development Consent, Construction Certificates, Unreasonable Conduct in Litigation
Costs Environmental Law Planning Law Costs Discretion Effect of Dismissal on Costs Judicial Review Development Consent Construction Certificates +1 more

Case Brief

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Parties

Mark Sader

First Applicant

Sandra Sader

Second Applicant

Yasser Elgammal

First Respondent

Abdul Hammoud

Second Respondent

The State of New South Wales

Third Respondent

Procedural Posture

Judicial Review Class 4 / Costs Determination After Dismissal by Consent

Legal Issues

  1. 1 Whether the removal of landscape plan rev F from the construction certificate amounted to a 'capitulation' by the first respondent justifying costs against the respondent
  2. 2 Whether the first respondent acted unreasonably in defending the proceedings so as to justify a different costs order

Ratio Decidendi

There was no effective surrender or capitulation by the first respondent—the proceedings were dismissed by consent, and no order for relief was made. The applicants were not almost certain to have succeeded had the matter been fully tried. Nor did the first respondent act unreasonably in defending the proceedings, as no formal defence was filed, no active opposition through prolonged litigation steps was established, and all progress occurred by consent. In these circumstances, the appropriate order is that there be no order as to costs, both for the proceedings and the costs hearing.

Court Disposition

No order as to costs

Orders

  • No order as to costs of the proceedings.
  • No order as to the costs of the costs hearing.