Jacobson & McMillan v Ballina Shire Council [2006] NSWLEC 375

Jacobson & McMillan v Ballina Shire Council [2006] NSWLEC 375

The Council was the successful party on both Class 2 notices of motion and in the Class 4 civil enforcement proceedings, and there was no disentitling conduct by the Council. The notices of motion had the character of ordinary litigation and the Class 4 proceeding was not akin to a merits appeal. The land owners' conduct did not meet the threshold for indemnity costs because their positions were not patently hopeless or in manifest defiance of known facts or clearly established law. Accordingly, the land owners were ordered to pay the Council's costs on the usual party/party basis, not on an indemnity basis.

Jurisdiction
Australia
Judgment Date
04 July 2006
Procedural Posture
Class 2 and Class 4 Land and Environment Court Proceedings; Costs Application / Costs After Determination of Two Notices of Motion in the Class 2 Proceedings and Final Orders in the Class 4 Proceedings
Outcome
Council awarded costs on the usual party/party basis; indemnity costs refused; land owners' claims for costs rejected.
Legal Topics
['disentitling Conduct' 'indemnity Costs' 'party/party Costs' 'legal Professional Privilege Waiver' 'consent Orders' 'civil Enforcement Proceedings Under the Local Government Act 1993']
['costs' 'planning and Environment' 'local Government' 'civil Procedure'] ['disentitling Conduct' 'indemnity Costs' 'party/party Costs' 'legal Professional Privilege Waiver' 'consent Orders' 'civil Enforcement Proceedings Under the Local Government Act 1993']

Case Brief

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Procedural Posture

Class 2 and Class 4 Land and Environment Court Proceedings; Costs Application / Costs After Determination of Two Notices of Motion in the Class 2 Proceedings and Final Orders in the Class 4 Proceedings

Legal Issues

  1. 1 ["Whether the land owners should pay the Council's costs of two notices of motion in the Class 2 proceedings and of the Class 4 proceedings." 'Whether costs should be ordered on an indemnity basis or only on the usual party/party basis.' 'Whether alleged disentitling conduct by the Council justified refusing costs to the Council or ordering costs against it.' 'Whether the Class 4 proceedings should be treated as akin to a merits appeal for costs purposes.']

Ratio Decidendi

The Council was the successful party on both Class 2 notices of motion and in the Class 4 civil enforcement proceedings, and there was no disentitling conduct by the Council. The notices of motion had the character of ordinary litigation and the Class 4 proceeding was not akin to a merits appeal. The land owners' conduct did not meet the threshold for indemnity costs because their positions were not patently hopeless or in manifest defiance of known facts or clearly established law. Accordingly, the land owners were ordered to pay the Council's costs on the usual party/party basis, not on an indemnity basis.

Court Disposition

Council awarded costs on the usual party/party basis; indemnity costs refused; land owners' claims for costs rejected.

Orders

  • ["Proceedings 21462 of 2004: The applicants are to pay the respondent's costs of and incidental to the respondent's notice of motion dated 10 February 2006 as agreed or as assessed." "Proceedings 21462 of 2004: The applicants are to pay the respondent's costs of and incidental to the applicants' notice of motion...