Drake v Randwick City Council [2021] NSWLEC 98

Drake v Randwick City Council [2021] NSWLEC 98

Because Ms Drake amended her Class 4 pleadings from relief tied to specific development plans into a request for abstract judicial advice about cl 4.1A of the Randwick Local Environmental Plan 2012, the proceedings became inappropriate for determination and their dismissal triggered the UCPR r 42.1 presumption that costs follow the event. There was no reason to depart from that presumption, and the Council was entitled to its costs, including costs of the costs consideration.

Jurisdiction
Australia
Judgment Date
16 September 2021
Procedural Posture
Class 4 Costs Determination / On the Papers After the Class 4 Proceedings Were Dismissed
Outcome
The Applicant was ordered to pay the Respondent's costs of the Class 4 proceedings and the costs of the costs consideration.
Legal Topics
['costs Follow the Event' 'declaratory Relief' 'judicial Advice in the Abstract' 'randwick Local Environmental Plan 2012 Cl 4.1 A' 'dual Occupancy and Strata Subdivision']
['costs' 'planning and Environmental Law' 'civil Procedure'] ['costs Follow the Event' 'declaratory Relief' 'judicial Advice in the Abstract' 'randwick Local Environmental Plan 2012 Cl 4.1 A' 'dual Occupancy and Strata Subdivision']

Case Brief

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Procedural Posture

Class 4 Costs Determination / On the Papers After the Class 4 Proceedings Were Dismissed

Legal Issues

  1. 1 ['Whether the presumption that costs follow the event under r 42.1 of the Uniform Civil Procedure Rules 2005 should apply after dismissal of the Class 4 proceedings.' "Whether Ms Drake's amendment of the Summons to seek abstract judicial advice concerning cl 4.1A of the Randwick Local Environmental Plan 2012 made the Class 4 proceedings inappropriate for determination." 'Whether any conduct of Randwick City Council justified departing from the ordinary costs position.']

Ratio Decidendi

Because Ms Drake amended her Class 4 pleadings from relief tied to specific development plans into a request for abstract judicial advice about cl 4.1A of the Randwick Local Environmental Plan 2012, the proceedings became inappropriate for determination and their dismissal triggered the UCPR r 42.1 presumption that costs follow the event. There was no reason to depart from that presumption, and the Council was entitled to its costs, including costs of the costs consideration.

Court Disposition

The Applicant was ordered to pay the Respondent's costs of the Class 4 proceedings and the costs of the costs consideration.

Orders

  • ["The Applicant is to pay the Respondent's costs in Matter No 365534 of 2020." "The Applicant is to pay the Respondent's costs of this costs' consideration in that matter."]