Hunter Ecologically Sustainable Employment Group Inc. v HEZ Pty Limited & Ors [2003] NSWLEC 357

Hunter Ecologically Sustainable Employment Group Inc. v HEZ Pty Limited & Ors [2003] NSWLEC 357

Security for costs was not appropriate at that stage because, although the applicant was plainly impecunious and might not meet an adverse costs order, it had a special interest in the land, brought a bona fide and strong case, and an order for security would almost certainly prevent it from continuing. The first respondent's reliance on Plumb did not undermine the strength of the claim because his Honour considered that the concurrence requirement under s 79B(3) likely depended on the position when consent was granted, not only when the development application was lodged. The matter was adjourned because the first respondent had raised whether the proceedings were lawfully authorised by...

Jurisdiction
Australia
Judgment Date
26 September 2003
Procedural Posture
Class 4 Proceedings; Application for Security for Costs / Ex Tempore Hearing of the First Respondent's Motion for Security for Costs
Outcome
No security for costs order was made at that stage; the motion was adjourned pending clarification of whether the proceedings were lawfully authorised.
Legal Topics
['security for Costs' 'development Consent' 'species Impact Statement' 'endangered Ecological Community' 'concurrence of Director General of National Parks and Wildlife' 'impecunious Voluntary Association']
['practice and Procedure' 'environmental Planning Law' 'threatened Species Conservation'] ['security for Costs' 'development Consent' 'species Impact Statement' 'endangered Ecological Community' 'concurrence of Director General of National Parks and Wildlife' 'impecunious Voluntary Association']

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Procedural Posture

Class 4 Proceedings; Application for Security for Costs / Ex Tempore Hearing of the First Respondent's Motion for Security for Costs

Legal Issues

  1. 1 ['Whether security for costs should be ordered against an impecunious voluntary association challenging a development consent.' "Whether the applicant's challenge to the development consent had sufficient strength and bona fides to weigh against security for costs." 'Whether Plumb v Penrith City Council & Or (2002) NSWLEC 223 meant that s 79B(3) did not operate where an endangered ecological community was listed after the development application was lodged but before consent was granted.' 'Whether the proceedings had been lawfully authorised by Hunter Ecologically Sustainable Employment Group Inc.']

Ratio Decidendi

Security for costs was not appropriate at that stage because, although the applicant was plainly impecunious and might not meet an adverse costs order, it had a special interest in the land, brought a bona fide and strong case, and an order for security would almost certainly prevent it from continuing. The first respondent's reliance on Plumb did not undermine the strength of the claim because his Honour considered that the concurrence requirement under s 79B(3) likely depended on the position when consent was granted, not only when the development application was lodged. The matter was adjourned because the first respondent had raised whether the proceedings were lawfully authorised by...

Court Disposition

No security for costs order was made at that stage; the motion was adjourned pending clarification of whether the proceedings were lawfully authorised.

Orders

  • ['The matter was adjourned for a short period so that Hunter Ecologically Sustainable Employment Group Inc could consider the authorisation issue and inform the first respondent and the Court of the actual position.']