Notaras v Tsimourtos and Anor [2022] NSWLEC 19

Notaras v Tsimourtos and Anor [2022] NSWLEC 19

The applicant was not almost certain to have succeeded on the substantive issues if the matter had been fully tried. There were properly arguable defences and the consent was sufficiently limited to the Site, with AD8 qualifying the scope of permissible works. Therefore, the proper exercise of the Court's discretion is to make no order as to costs regarding the primary proceedings, with the applicant to pay the first respondent's costs of the motion.

Parties
Applicant: Anthony Lambrinos Notaras; First Respondent: George Tsimourtos; Second Respondent: Waverley Council
Jurisdiction
Australia
Judgment Date
11 March 2022
Procedural Posture
Judicial Review / Costs Decision After Discontinuance
Outcome
Leave to discontinue granted, no order as to costs of proceedings, applicant to pay first respondent's costs of motion.
Legal Topics
Discontinuance of Proceedings, Development Consent, Costs Discretion, Owner's Consent for Development Applications
Administrative Law Planning Law Costs Discontinuance of Proceedings Development Consent Costs Discretion Owner's Consent for Development Applications

Case Brief

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Parties

Anthony Lambrinos Notaras

Applicant

George Tsimourtos

First Respondent

Waverley Council

Second Respondent

Procedural Posture

Judicial Review / Costs Decision After Discontinuance

Legal Issues

  1. 1 Whether applicant entitled to costs after discontinuance of judicial review proceedings
  2. 2 Whether applicant almost certain to succeed on absence of owner's consent for development affecting applicant's land
  3. 3 Whether any orders on costs should deviate from general rule on discontinuance

Ratio Decidendi

The applicant was not almost certain to have succeeded on the substantive issues if the matter had been fully tried. There were properly arguable defences and the consent was sufficiently limited to the Site, with AD8 qualifying the scope of permissible works. Therefore, the proper exercise of the Court's discretion is to make no order as to costs regarding the primary proceedings, with the applicant to pay the first respondent's costs of the motion.

Court Disposition

Leave to discontinue granted, no order as to costs of proceedings, applicant to pay first respondent's costs of motion.

Orders

  • Applicant granted leave to discontinue against second respondent. No order as to costs as between applicant and second respondent.
  • Applicant granted leave to discontinue against first respondent. No order as to costs as between applicant and first respondent for the proceedings. Applicant to pay first respondent's costs of the notice of motion filed 8 October 2021.