Broken Hill City Council v Tumanic [2012] NSWLEC 162

Broken Hill City Council v Tumanic [2012] NSWLEC 162

Because the landlord had re-entered and the respondents no longer occupied or traded from the premises, continuing the proceedings would have little utility and would not be just, quick or cheap, so leave to discontinue was granted. The respondents' failure to engage with the council and the litigation was sufficiently unreasonable to justify ordering them to pay the council's costs of the proceedings and the motion. However, the Court lacked sufficient confidence on the material before it that $19,035.90 was a logical, fair and reasonable gross sum, so costs were ordered as agreed or assessed.

Jurisdiction
Australia
Judgment Date
16 July 2012
Procedural Posture
Class 4 Proceedings / Ex Parte Notice of Motion for Leave to Discontinue Proceedings and for Costs
Outcome
Leave to discontinue granted. Respondents ordered to pay the applicant's costs of the proceedings and the motion as agreed or assessed. Fixed gross sum costs order refused.
Legal Topics
['discontinuance of Proceedings' 'class 4 Civil Enforcement Proceedings' 'use of Premises Contrary to Development Consent' 'gross Sum Costs Order' 'costs as Agreed or Assessed']
['costs' 'planning and Environment'] ['discontinuance of Proceedings' 'class 4 Civil Enforcement Proceedings' 'use of Premises Contrary to Development Consent' 'gross Sum Costs Order' 'costs as Agreed or Assessed']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 4 Proceedings / Ex Parte Notice of Motion for Leave to Discontinue Proceedings and for Costs

Legal Issues

  1. 1 ['Whether leave should be granted to the applicant to discontinue the proceedings after the owner re-entered the premises and the kebab shop ceased operating.' "Whether the respondents should pay the applicant's costs of the discontinued proceedings and of the motion." "Whether the applicant's costs should be fixed in the sum of $19,035.90 rather than payable as agreed or assessed."]

Ratio Decidendi

Because the landlord had re-entered and the respondents no longer occupied or traded from the premises, continuing the proceedings would have little utility and would not be just, quick or cheap, so leave to discontinue was granted. The respondents' failure to engage with the council and the litigation was sufficiently unreasonable to justify ordering them to pay the council's costs of the proceedings and the motion. However, the Court lacked sufficient confidence on the material before it that $19,035.90 was a logical, fair and reasonable gross sum, so costs were ordered as agreed or assessed.

Court Disposition

Leave to discontinue granted. Respondents ordered to pay the applicant's costs of the proceedings and the motion as agreed or assessed. Fixed gross sum costs order refused.

Orders

  • ['Leave is granted to the council to discontinue the proceedings.' "The respondents are to pay the council's costs of the proceedings as agreed or assessed." "The respondents are to pay the council's costs of the motion as agreed or assessed." 'The exhibits are to be returned.']