Halliday v Filmlock Pty Limited and Ors [2007] NSWLEC 477

Halliday v Filmlock Pty Limited and Ors [2007] NSWLEC 477

The settlement between the Applicant and the First, Second, Third and Fourth Respondents was an extra-curial resolution that removed the subject matter of the dispute, not an effective surrender in the litigation. There was no evidence that any party acted unreasonably, the Applicant was not shown to be almost certain to have succeeded, and Pt 15 r 7 was not engaged because the substantive issues were not determined and the surrender occurred without admissions as part of a settlement and second development application process. Accordingly, no order as to costs was appropriate in the substantive proceedings, but because the Applicant failed in his costs application he was ordered to pay...

Jurisdiction
Australia
Judgment Date
26 July 2007
Procedural Posture
Class 4 Proceedings Seeking Declarations and Orders Concerning Validity and Use of a Development Consent / Costs Determination After Extra Curial Settlement and No Hearing on the Merits
Outcome
Class 4 Application dismissed; no order as to costs in the substantive proceedings; Fifth Respondent's Notice of Motion dismissed; Applicant to pay the Respondents' costs of the hearing on costs on 26 July 2007.
Legal Topics
['civil Enforcement' 'development Consent' 'extra Curial Settlement' 'discretionary Costs Orders' 'surrender of Development Consent' 'land and Environment Court Rules 1996 Pt 15 R 7']
['planning and Environment Law' 'civil Procedure' 'costs'] ['civil Enforcement' 'development Consent' 'extra Curial Settlement' 'discretionary Costs Orders' 'surrender of Development Consent' 'land and Environment Court Rules 1996 Pt 15 R 7']

Case Brief

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Procedural Posture

Class 4 Proceedings Seeking Declarations and Orders Concerning Validity and Use of a Development Consent / Costs Determination After Extra Curial Settlement and No Hearing on the Merits

Legal Issues

  1. 1 ['Whether the Applicant should receive costs after the development consent challenged in the proceedings was surrendered following an extra-curial settlement.' 'Whether the First, Second, Third and Fourth Respondents had effectively surrendered to the Applicant for costs purposes.' "Whether Land and Environment Court Rules 1996 Pt 15 r 7 applied because the Respondents satisfied or caused to be satisfied the Applicant's claim." 'Whether the Applicant was almost certain to have succeeded on the alleged failure to consider draft SEPP 1.' 'Whether the Council should receive its costs or whether there should be no order as to costs.']

Ratio Decidendi

The settlement between the Applicant and the First, Second, Third and Fourth Respondents was an extra-curial resolution that removed the subject matter of the dispute, not an effective surrender in the litigation. There was no evidence that any party acted unreasonably, the Applicant was not shown to be almost certain to have succeeded, and Pt 15 r 7 was not engaged because the substantive issues were not determined and the surrender occurred without admissions as part of a settlement and second development application process. Accordingly, no order as to costs was appropriate in the substantive proceedings, but because the Applicant failed in his costs application he was ordered to pay...

Court Disposition

Class 4 Application dismissed; no order as to costs in the substantive proceedings; Fifth Respondent's Notice of Motion dismissed; Applicant to pay the Respondents' costs of the hearing on costs on 26 July 2007.

Orders

  • ['The Class 4 Application is dismissed.' 'There is no order as to costs in the substantive proceedings.' "The Fifth Respondent's Notice of Motion of 20 July 2007 is dismissed." "The Applicant is to pay the Respondents' costs of the hearing on costs on 26 July 2007." 'The exhibits are to be returned.']