Evans and Anor. v Maclean Shire Council and Anor. [2005] NSWLEC 67

Evans and Anor. v Maclean Shire Council and Anor. [2005] NSWLEC 67

Although the Applicants were the successful parties, their full costs should not be awarded because their conduct of the litigation caused unnecessary and wasted costs. They failed on their primary characterisation case, denied existing use entitlements in their pleadings despite ultimately succeeding only because existing use entitlements sustained the decisive construction argument, and should have pleaded earlier the point on which they ultimately succeeded. These matters constituted special circumstances or disentitling conduct justifying a limited costs order of 40 percent of assessed costs, and no order as to the costs of the costs motion.

Jurisdiction
Australia
Judgment Date
28 February 2005
Procedural Posture
Class 4 Proceedings; Costs Motion / Notice of Motion Filed 10 December 2004 Seeking Costs After the Applicants Succeeded in the Substantive Proceedings
Outcome
Applicants awarded only part of their costs; no order as to costs of the costs motion.
Legal Topics
['costs Discretion Under Land and Environment Court Act 1979, S 69' 'costs Following the Event' 'special Circumstances and Disentitling Conduct' 'unnecessary or Wasted Costs Caused by Conduct of Litigation' 'state Significant Development and Consent Authority Under Sepp71']
['costs' 'environmental Planning and Development'] ['costs Discretion Under Land and Environment Court Act 1979, S 69' 'costs Following the Event' 'special Circumstances and Disentitling Conduct' 'unnecessary or Wasted Costs Caused by Conduct of Litigation' 'state Significant Development and Consent Authority Under Sepp71']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 4 Proceedings; Costs Motion / Notice of Motion Filed 10 December 2004 Seeking Costs After the Applicants Succeeded in the Substantive Proceedings

Legal Issues

  1. 1 ['Whether the successful Applicants should obtain an order that the second Respondent pay their costs in the class 4 proceedings.' "Whether special circumstances or disentitling conduct justified withholding or limiting the Applicants' costs despite their success." "Whether the Applicants' pleading and conduct of the proceedings caused unnecessary or wasted costs, including by denying existing use entitlements and not pleading earlier the point on which they ultimately succeeded."]

Ratio Decidendi

Although the Applicants were the successful parties, their full costs should not be awarded because their conduct of the litigation caused unnecessary and wasted costs. They failed on their primary characterisation case, denied existing use entitlements in their pleadings despite ultimately succeeding only because existing use entitlements sustained the decisive construction argument, and should have pleaded earlier the point on which they ultimately succeeded. These matters constituted special circumstances or disentitling conduct justifying a limited costs order of 40 percent of assessed costs, and no order as to the costs of the costs motion.

Court Disposition

Applicants awarded only part of their costs; no order as to costs of the costs motion.

Orders

  • ["The second Respondent shall pay 40 percent of the Applicants' costs in the proceedings (other than the costs of the hearing of the Applicants' Motion for costs) in the sum agreed, or failing agreement, as assessed." "There be no order for costs on the hearing of the Applicants' Notice of Motion seeking an order...