Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 4) [2017] NSWLEC 116

Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 4) [2017] NSWLEC 116

Although the separate question was a mixed question of fact and law, was potentially determinative, did not involve merits evaluation, and was successfully argued by Moorebank, those matters were not of sufficient weight to overcome the presumptive rule against costs in Class 1 proceedings, particularly given the facts surrounding the raising of the issue and Moorebank's unsatisfactory failure to provide information earlier. Benedict's transitional Part 3A conduct was of concern, but the issue was not properly before the Court and was not heard or determined. The issue estoppel and undertaking issues were raised late and Moorebank failed on them, but they were arguable and formed part of...

Jurisdiction
Australia
Judgment Date
14 September 2017
Procedural Posture
Class 1 Objector Appeals Under S 75 L of the Environmental Planning and Assessment Act 1979 (nsw) Concerning Approval of a Materials Recycling Facility / Competing Notices of Motion for Costs After Judgment and Final Orders in the Substantive Appeals
Outcome
Both costs motions dismissed; no order as to costs, with each party bearing its own costs.
Legal Topics
['costs in Class 1 Proceedings' 'presumptive No Costs Rule' 'separate Question' 'potentially Determinative Issue' 'transitional Part 3 a Project' 'issue Estoppel' 'undertaking']
['planning and Environment' 'civil Procedure' 'costs'] ['costs in Class 1 Proceedings' 'presumptive No Costs Rule' 'separate Question' 'potentially Determinative Issue' 'transitional Part 3 a Project' 'issue Estoppel' 'undertaking']

Case Brief

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Procedural Posture

Class 1 Objector Appeals Under S 75 L of the Environmental Planning and Assessment Act 1979 (nsw) Concerning Approval of a Materials Recycling Facility / Competing Notices of Motion for Costs After Judgment and Final Orders in the Substantive Appeals

Legal Issues

  1. 1 ['Whether Moorebank should receive costs from Benedict and Council for the hearing of the separate question concerning physical commencement of the earthworks consent for the purposes of s 95(4) of the Environmental Planning and Assessment Act 1979 (NSW).' 'Whether Moorebank should receive costs from Benedict concerning the issue whether the proposal was a transitional Part 3A project.' "Whether, if costs were ordered against Benedict, Moorebank should pay Benedict's costs of the issue estoppel and earlier undertaking questions." 'Whether the circumstances displaced the presumptive rule against costs in Class 1 proceedings and made a costs order fair and reasonable.']

Ratio Decidendi

Although the separate question was a mixed question of fact and law, was potentially determinative, did not involve merits evaluation, and was successfully argued by Moorebank, those matters were not of sufficient weight to overcome the presumptive rule against costs in Class 1 proceedings, particularly given the facts surrounding the raising of the issue and Moorebank's unsatisfactory failure to provide information earlier. Benedict's transitional Part 3A conduct was of concern, but the issue was not properly before the Court and was not heard or determined. The issue estoppel and undertaking issues were raised late and Moorebank failed on them, but they were arguable and formed part of...

Court Disposition

Both costs motions dismissed; no order as to costs, with each party bearing its own costs.

Orders

  • ['The Notice of Motion filed by Moorebank Recyclers Pty Limited dated 6 July 2017 is dismissed.' 'The Notice of Motion filed by Benedict Industries Pty Ltd and Tanlane Pty Ltd dated 5 July 2017 is dismissed.']