Kelly v Randwick City Council [2019] NSWLEC 43

Kelly v Randwick City Council [2019] NSWLEC 43

Although Mr Kelly was successful on the interpretative issue, when weighed against his unreasonable failure to release town planners and the fact that a key condition (Condition 6) remained in dispute until late in the hearing, it was not fair and reasonable to order costs in his favour under r 3.7 of the Land and Environment Court Rules 2007. The Council’s purported Calderbank offer did not warrant indemnity costs as it was not a valid compromise offer and no related application was maintained at hearing.

Parties
Applicant: Craig Kelly; Respondent: Randwick City Council
Jurisdiction
Australia
Judgment Date
05 April 2019
Procedural Posture
Class 1 Merit Appeal (costs Application) / Costs Application Post Hearing
Outcome
Application for costs order dismissed; applicant to pay respondent’s costs of the costs application (with capped photocopying costs); exhibits and Court Book returned.
Legal Topics
Costs in Merit Appeals, Interpretation of Local Environmental Plans, Reasonable Conduct in Litigation
Planning and Environment Law Costs in Merit Appeals Interpretation of Local Environmental Plans Reasonable Conduct in Litigation

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Parties

Craig Kelly

Applicant

Randwick City Council

Respondent

Procedural Posture

Class 1 Merit Appeal (costs Application) / Costs Application Post Hearing

Legal Issues

  1. 1 Whether it is fair and reasonable to make a costs order in favour of the successful party under r 3.7 of the Land and Environment Court Rules 2007 in Class 1 proceedings
  2. 2 Interpretation of cl 4.1A(4) of the Randwick Local Environmental Plan 2012 relating to minimum subdivision lot size for strata schemes
  3. 3 Effect of parties’ conduct (e.g. non-release of witnesses, settlement of conditions) on the exercise of discretion to award costs

Ratio Decidendi

Although Mr Kelly was successful on the interpretative issue, when weighed against his unreasonable failure to release town planners and the fact that a key condition (Condition 6) remained in dispute until late in the hearing, it was not fair and reasonable to order costs in his favour under r 3.7 of the Land and Environment Court Rules 2007. The Council’s purported Calderbank offer did not warrant indemnity costs as it was not a valid compromise offer and no related application was maintained at hearing.

Court Disposition

Application for costs order dismissed; applicant to pay respondent’s costs of the costs application (with capped photocopying costs); exhibits and Court Book returned.

Orders

  • The Applicant's application for a costs order in respect of the hearing before Dickson C is dismissed.
  • The Applicant is to pay the Respondent's costs of the costs application as agreed or assessed, with the Respondent's photocopying costs capped at 20% of the costs of the photocopying undertaken by the Respondent or on behalf of the Respondent by its legal advisers.