Bluebank Properties Pty Ltd v Willoughby City Council [2008] NSWLEC 270

Bluebank Properties Pty Ltd v Willoughby City Council [2008] NSWLEC 270

The Applicant failed to establish any circumstance under r 3.7(3)(c), (d) or (e) warranting a departure from the usual Class 1 costs position. The Council's reliance on the substantial sameness contention was reasonable because it was the determinative threshold issue, its changes to contentions responded to information provided by the Applicant, and its expert evidence was explained by the Applicant's late positions and material. There was no abuse of process, improper purpose, or unreasonable conduct by the Council. The Applicant's costs motion was therefore dismissed, and as the Council succeeded on the motion it was awarded its costs, but not on an indemnity basis because poor...

Jurisdiction
Australia
Judgment Date
18 September 2008
Procedural Posture
Class 1 Proceedings Costs Application Concerning a S 96 Modification Application / Notice of Motion Seeking Costs After the Applicant's S 96 Modification Application Was Dismissed
Outcome
Notice of Motion dismissed; Applicant ordered to pay the Council's costs of the costs motion and hearing as agreed or assessed; indemnity costs refused.
Legal Topics
['costs in Class 1 Proceedings' 'discretion to Award Costs' 'unreasonable Conduct' 'improper Purpose' 'model Litigant Submissions' 'section 96 Modification Application']
['planning and Environment Law' 'civil Procedure' 'costs'] ['costs in Class 1 Proceedings' 'discretion to Award Costs' 'unreasonable Conduct' 'improper Purpose' 'model Litigant Submissions' 'section 96 Modification Application']

Case Brief

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Procedural Posture

Class 1 Proceedings Costs Application Concerning a S 96 Modification Application / Notice of Motion Seeking Costs After the Applicant's S 96 Modification Application Was Dismissed

Legal Issues

  1. 1 ['Whether it was fair and reasonable to award costs to the unsuccessful Applicant in Class 1 proceedings.' 'Whether the Council behaved unreasonably leading up to the litigation or in the proceedings.' 'Whether the Council defended the proceedings for an improper purpose or abused the process of the Court.' 'Whether indemnity costs should be awarded on the costs motion.']

Ratio Decidendi

The Applicant failed to establish any circumstance under r 3.7(3)(c), (d) or (e) warranting a departure from the usual Class 1 costs position. The Council's reliance on the substantial sameness contention was reasonable because it was the determinative threshold issue, its changes to contentions responded to information provided by the Applicant, and its expert evidence was explained by the Applicant's late positions and material. There was no abuse of process, improper purpose, or unreasonable conduct by the Council. The Applicant's costs motion was therefore dismissed, and as the Council succeeded on the motion it was awarded its costs, but not on an indemnity basis because poor...

Court Disposition

Notice of Motion dismissed; Applicant ordered to pay the Council's costs of the costs motion and hearing as agreed or assessed; indemnity costs refused.

Orders

  • ['The Notice of Motion dated 2 July 2008 is dismissed.' "The Applicant is to pay the Council's costs of the costs motion and hearing as agreed or assessed." 'Exhibits to be returned except Exhibits 5, 13, 15, 16, F, H and L.']