Prince v North Sydney Council [2001] NSWLEC 165

Prince v North Sydney Council [2001] NSWLEC 165

Leave to seek costs was granted because no particular prejudice to the applicant was identified and the Outboard Marine principles supported an extension. However, no costs were awarded in the class 2 proceedings because the appeal was of the same genus as a building appeal, the applicable guidance was that costs should not be ordered absent exceptional circumstances, and the applicant acted reasonably in pursuing the appeal while the Council's order remained in place. The allegations that the applicant misled the Council and the Court did not amount to sufficient exceptional circumstances. No costs were awarded in the class 3 proceedings because the applicant promptly discontinued them...

Jurisdiction
Australia
Judgment Date
21 June 2001
Procedural Posture
Costs Application in Land and Environment Court Proceedings Arising From a Class 2 Appeal Under S 180 of the Local Government Act 1993 Against an Order Under S 124, and Related Class 3 Proceedings Under S 181 / Respondent's Notice of Motion for Leave to Seek Costs and for Costs After the Class 2 Appeal Had Been Determined by a Commissioner and the Class 3 Proceedings Discontinued
Outcome
Leave to seek costs granted; substantive claim for costs in the class 2 and class 3 proceedings dismissed; respondent ordered to pay half the applicant's costs of the notice of motion.
Legal Topics
['class 2 Proceedings' 'class 3 Proceedings' 'local Government Act Orders' 'practice Direction 1993 Cl 10' 'extension of Time to Seek Costs' 'exceptional Circumstances for Costs' 'discontinuance of Proceedings']
['costs' 'local Government' 'planning and Environment'] ['class 2 Proceedings' 'class 3 Proceedings' 'local Government Act Orders' 'practice Direction 1993 Cl 10' 'extension of Time to Seek Costs' 'exceptional Circumstances for Costs' 'discontinuance of Proceedings']

Case Brief

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Procedural Posture

Costs Application in Land and Environment Court Proceedings Arising From a Class 2 Appeal Under S 180 of the Local Government Act 1993 Against an Order Under S 124, and Related Class 3 Proceedings Under S 181 / Respondent's Notice of Motion for Leave to Seek Costs and for Costs After the Class 2 Appeal Had Been Determined by a Commissioner and the Class 3 Proceedings Discontinued

Legal Issues

  1. 1 ['Whether leave should be granted to bring the costs motion outside the 14 day period referred to in cl 10 of Practice Direction 1993.' 'Whether an appeal under s 180 of the Local Government Act 1993 against an order under s 124 was of the same genus as a building appeal for the purposes of cl 10 of Practice Direction 1993.' 'Whether cl 10 of Practice Direction 1993, or the long-standing practice it reflected, should guide the costs discretion after Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78.' 'Whether exceptional circumstances justified a costs order in the class 2 proceedings.' 'Whether costs should be ordered in the discontinued class 3 proceedings under s 181 of the Local Government Act 1993.' 'What costs order should be made on the notice of motion itself.']

Ratio Decidendi

Leave to seek costs was granted because no particular prejudice to the applicant was identified and the Outboard Marine principles supported an extension. However, no costs were awarded in the class 2 proceedings because the appeal was of the same genus as a building appeal, the applicable guidance was that costs should not be ordered absent exceptional circumstances, and the applicant acted reasonably in pursuing the appeal while the Council's order remained in place. The allegations that the applicant misled the Council and the Court did not amount to sufficient exceptional circumstances. No costs were awarded in the class 3 proceedings because the applicant promptly discontinued them...

Court Disposition

Leave to seek costs granted; substantive claim for costs in the class 2 and class 3 proceedings dismissed; respondent ordered to pay half the applicant's costs of the notice of motion.

Orders

  • ['I make order 1 as set out in the notice of motion.' 'Order 2 set out in the notice of motion is dismissed.' "The respondent is to pay half the applicant's costs of the notice of motion." 'The exhibits may be returned.']