Barich v Parramatta City Council [2015] NSWLEC 98

Barich v Parramatta City Council [2015] NSWLEC 98

It was not fair and reasonable to order the Council to pay the applicant's costs because the applicant's success in the substantive appeal did not itself displace the r 3.7(2) presumption, the Council did not act unreasonably in defending the proceedings, its reliance on the Barrak decision and on the statutory test in s 525(3) was reasonable, the later change to Business-General for 2014/15 did not establish that the Council lacked reasonable grounds for 2013/14, and the late production of documents did not cause demonstrated prejudice sufficient to justify a costs order.

Jurisdiction
Australia
Judgment Date
18 June 2015
Procedural Posture
Class 3 Costs Motion in Proceedings Concerning an Appeal Under S 526 of the Local Government Act 1993 (nsw) / Notice of Motion for Costs After the Applicant Succeeded in the Substantive Appeal
Outcome
The applicant's notice of motion for costs was dismissed.
Legal Topics
['class 3 Proceedings' 'rating Subcategory of Land' 'deemed Refusal' 'land and Environment Court Rules 2007 (nsw) R 3.7' 'fair and Reasonable Costs Orders' 'unreasonable Defence of Proceedings' 'notice to Produce']
['costs' 'local Government' 'land and Environment Court Procedure'] ['class 3 Proceedings' 'rating Subcategory of Land' 'deemed Refusal' 'land and Environment Court Rules 2007 (nsw) R 3.7' 'fair and Reasonable Costs Orders' 'unreasonable Defence of Proceedings' 'notice to Produce']

Case Brief

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Procedural Posture

Class 3 Costs Motion in Proceedings Concerning an Appeal Under S 526 of the Local Government Act 1993 (nsw) / Notice of Motion for Costs After the Applicant Succeeded in the Substantive Appeal

Legal Issues

  1. 1 ["Whether it was fair and reasonable under r 3.7 of the Land and Environment Court Rules 2007 (NSW) to order Parramatta City Council to pay the applicant's costs of the Class 3 appeal." 'Whether the Council acted unreasonably in defending the appeal, including whether it had no reasonable prospects of success.' 'Whether late production of documents by the Council supported a costs order against it.' "Whether the applicant's success in the substantive appeal was sufficient to displace the presumption that costs are not ordered."]

Ratio Decidendi

It was not fair and reasonable to order the Council to pay the applicant's costs because the applicant's success in the substantive appeal did not itself displace the r 3.7(2) presumption, the Council did not act unreasonably in defending the proceedings, its reliance on the Barrak decision and on the statutory test in s 525(3) was reasonable, the later change to Business-General for 2014/15 did not establish that the Council lacked reasonable grounds for 2013/14, and the late production of documents did not cause demonstrated prejudice sufficient to justify a costs order.

Court Disposition

The applicant's notice of motion for costs was dismissed.

Orders

  • ["The applicant's notice of motion dated and filed 13 January 2015 is dismissed." "The applicant must pay the respondent's costs of that motion unless by 5.00pm on 25 June 2015 he notifies both my Associate and the Council that a different order is sought." 'The exhibits may be returned.']