Jodie Dianne Ansted v Northern Beaches Council [2021] NSWLEC 136

Jodie Dianne Ansted v Northern Beaches Council [2021] NSWLEC 136

Order 5 of the Consent Orders was conditional on timely compliance with Orders 1-4, so after non-compliance the outstanding issue of costs could be determined under the liberty to apply. However, the Consent Orders were a true compromise of the proceedings and the underlying stormwater dispute, not a capitulation or substantive success by the Applicants. Because the hearing was incomplete and the evidence was disputed, the Court could not determine that the Applicants would inevitably have succeeded without conducting an impermissible hypothetical trial, and it was not satisfied that the Second and Third Respondents acted unreasonably in defending the proceedings until settlement. The...

Jurisdiction
Australia
Judgment Date
24 November 2021
Procedural Posture
Class 4 Costs Application Following Consent Orders in Civil Enforcement or Judicial Review Proceedings / Notice of Motion Filed 25 May 2021 Seeking Variation of Costs Order After Proceedings Settled by Consent
Outcome
Notice of Motion dismissed; Applicants ordered to pay the Second and Third Respondents' costs of the Notice of Motion.
Legal Topics
['costs Following Settlement by Consent' 'consent Orders' 'liberty to Apply' 'conditional Costs Order' 'no Hearing on the Merits' 'civil Enforcement Proceedings']
['costs' 'civil Procedure' 'land and Environment'] ['costs Following Settlement by Consent' 'consent Orders' 'liberty to Apply' 'conditional Costs Order' 'no Hearing on the Merits' 'civil Enforcement Proceedings']

Case Brief

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Procedural Posture

Class 4 Costs Application Following Consent Orders in Civil Enforcement or Judicial Review Proceedings / Notice of Motion Filed 25 May 2021 Seeking Variation of Costs Order After Proceedings Settled by Consent

Legal Issues

  1. 1 ['Whether Order 5 of the Consent Orders was conditional upon compliance with Orders 1-4 within the original timeframe and whether the question of costs could be determined after non-compliance.' 'Whether the Applicants had achieved substantive success or whether the Consent Orders represented a true compromise.' "Whether the Court should order the Second and Third Respondents to pay 50% of the Applicants' costs of the whole proceedings." 'Whether costs of the Notice of Motion should follow the event.']

Ratio Decidendi

Order 5 of the Consent Orders was conditional on timely compliance with Orders 1-4, so after non-compliance the outstanding issue of costs could be determined under the liberty to apply. However, the Consent Orders were a true compromise of the proceedings and the underlying stormwater dispute, not a capitulation or substantive success by the Applicants. Because the hearing was incomplete and the evidence was disputed, the Court could not determine that the Applicants would inevitably have succeeded without conducting an impermissible hypothetical trial, and it was not satisfied that the Second and Third Respondents acted unreasonably in defending the proceedings until settlement. The...

Court Disposition

Notice of Motion dismissed; Applicants ordered to pay the Second and Third Respondents' costs of the Notice of Motion.

Orders

  • ['The Notice of Motion filed 25 May 2021 is dismissed.' "The Applicants are to pay the Second and Third Respondents' costs of the Notice of Motion."]