The Trustees of the Roman Catholic Church for the Diocese of Broken Bay v Willoughby City Council [2023] NSWLEC 88

The Trustees of the Roman Catholic Church for the Diocese of Broken Bay v Willoughby City Council [2023] NSWLEC 88

No costs order was fair or reasonable because, although Council had a justifiable basis for bringing the notice of motion and the motion procedure was an appropriate response to its concerns, the Diocese also acted appropriately by attempting to address and resolve those concerns before and during the hearing. The parties' conduct did not rebut the presumptive rule in r 3.7(2) of the Land and Environment Court Rules 2007 (NSW).

Jurisdiction
Australia
Judgment Date
24 August 2023
Procedural Posture
Class 1 Appeal Pursuant to S 30 of the Heritage Act 1977 (nsw) Against the Making of an Interim Heritage Order / Costs Determination After Consent Orders Resolved a Notice of Motion to Strike Out or Summarily Dismiss Contentions
Outcome
Leave granted to file an amended statement of facts and contentions; notice of motion withdrawn; no order as to costs.
Legal Topics
['notice of Motion to Strike Out or Summarily Dismiss Contentions' 'statement of Facts and Contentions' 'class 1 Proceedings' 'interim Heritage Order' 'whether Costs Order Fair and Reasonable']
['costs' 'land and Environment' 'heritage'] ['notice of Motion to Strike Out or Summarily Dismiss Contentions' 'statement of Facts and Contentions' 'class 1 Proceedings' 'interim Heritage Order' 'whether Costs Order Fair and Reasonable']

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Procedural Posture

Class 1 Appeal Pursuant to S 30 of the Heritage Act 1977 (nsw) Against the Making of an Interim Heritage Order / Costs Determination After Consent Orders Resolved a Notice of Motion to Strike Out or Summarily Dismiss Contentions

Legal Issues

  1. 1 ['Whether an order for costs of the notice of motion should be made in favour of either party.' 'Whether the circumstances and conduct of the parties were of sufficient weight to overcome the presumptive rule that there be no order as to costs in Class 1 proceedings.' "Whether proceeding by notice of motion to strike out was an appropriate response to Council's concerns in the proceedings."]

Ratio Decidendi

No costs order was fair or reasonable because, although Council had a justifiable basis for bringing the notice of motion and the motion procedure was an appropriate response to its concerns, the Diocese also acted appropriately by attempting to address and resolve those concerns before and during the hearing. The parties' conduct did not rebut the presumptive rule in r 3.7(2) of the Land and Environment Court Rules 2007 (NSW).

Court Disposition

Leave granted to file an amended statement of facts and contentions; notice of motion withdrawn; no order as to costs.

Orders

  • ['Leave is granted for The Trustees of the Roman Catholic Church for the Diocese of Broken Bay to file an amended statement of facts and contentions dated 23 August 2023.' 'The notice of motion filed 9 August 2023 is withdrawn.' 'No order as to costs of and in relation to that notice of motion.']