Canterbury City Council v Mihalopoulos [2011] NSWLEC 11

Canterbury City Council v Mihalopoulos [2011] NSWLEC 11

The original costs order should be varied because the evidence showed that Ms Mihalopoulos did not participate in and was not responsible for the unlawful development, whereas Mr Mihalopoulos carried out the unlawful works, failed to rectify them when requested by the council, and by his inaction caused the council to incur the costs of the proceedings. There was no basis to apportion costs by ownership interests, and Ms Mihalopoulos' impecuniosity alone would not justify variation, but her lack of responsibility for the unlawful works did.

Jurisdiction
Australia
Judgment Date
15 February 2011
Procedural Posture
Civil Enforcement Proceedings Costs Motion / Notice of Motion by the Second Respondent to Vary a Costs Order Made on 30 November 2010
Outcome
Costs order varied; first respondent ordered to pay the applicant's costs of the proceedings and the applicant's and second respondent's costs of the motion.
Legal Topics
['variation of Costs Order' 'civil Enforcement Proceedings' 'unlawful Development Works' 'submitting Appearance' 'apportionment of Costs' 'impecuniosity and Costs']
['costs' 'civil Procedure' 'environmental Planning and Development'] ['variation of Costs Order' 'civil Enforcement Proceedings' 'unlawful Development Works' 'submitting Appearance' 'apportionment of Costs' 'impecuniosity and Costs']

Case Brief

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Procedural Posture

Civil Enforcement Proceedings Costs Motion / Notice of Motion by the Second Respondent to Vary a Costs Order Made on 30 November 2010

Legal Issues

  1. 1 ["Whether the costs order made on 30 November 2010 requiring the respondents to pay the council's costs should be varied." "Whether the first respondent alone should pay the council's costs of the civil enforcement proceedings." "Whether costs should be apportioned according to the parties' respective ownership interests in the dwelling." "Whether the second respondent's impecuniosity justified varying the costs order."]

Ratio Decidendi

The original costs order should be varied because the evidence showed that Ms Mihalopoulos did not participate in and was not responsible for the unlawful development, whereas Mr Mihalopoulos carried out the unlawful works, failed to rectify them when requested by the council, and by his inaction caused the council to incur the costs of the proceedings. There was no basis to apportion costs by ownership interests, and Ms Mihalopoulos' impecuniosity alone would not justify variation, but her lack of responsibility for the unlawful works did.

Court Disposition

Costs order varied; first respondent ordered to pay the applicant's costs of the proceedings and the applicant's and second respondent's costs of the motion.

Orders

  • ['The costs order made on 30 November 2010 is vacated.' 'The first respondent is ordered to pay the costs of the applicant of the proceedings.' "The first respondent is to pay the applicant's and second respondent's costs of the motion." 'The exhibits on the motion are returned.']