F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 3) [2007] NSWLEC 569

F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 3) [2007] NSWLEC 569

The applicant, as the successful party, was entitled to its costs against the council, but not the costs of obtaining injunctions against the second, third and fourth respondents. The applicant had not acted unreasonably in maintaining the 2002 development consent issue because it was linked to the challenge to the 2003 development consent. The council's 20 October 2006 correspondence was a settlement offer requiring abandonment of other claims, including the successful Chapman Reserve claim, and did not make the applicant's continued conduct unreasonable. Although the late joinder of the Registrar-General caused an adjournment, that was offset by the council's late production of...

Jurisdiction
Australia
Judgment Date
06 September 2007
Procedural Posture
Costs Application in Judicial Review Proceedings Concerning Development Consent and Community Land / Costs Determination After Substantive Relief Had Been Granted
Outcome
The council was ordered to pay the applicant's costs of the proceedings, except the applicant's costs of obtaining injunctions against the second, third and fourth respondents; no order was made as to the costs of the costs applications.
Legal Topics
['departure From Usual Costs Order' 'indemnity Costs' 'apportionment of Costs' 'development Consent Validity' 'community Land' 'rectification of Register' 'joinder of Registrar General' 'interlocutory Injunction Costs']
['costs' 'planning and Environment' 'local Government' 'real Property'] ['departure From Usual Costs Order' 'indemnity Costs' 'apportionment of Costs' 'development Consent Validity' 'community Land' 'rectification of Register' 'joinder of Registrar General' 'interlocutory Injunction Costs']

Case Brief

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Procedural Posture

Costs Application in Judicial Review Proceedings Concerning Development Consent and Community Land / Costs Determination After Substantive Relief Had Been Granted

Legal Issues

  1. 1 ['Whether the applicant behaved unreasonably in maintaining a challenge to the 2002 development consent after it had been surrendered.' "Whether the applicant unreasonably prolonged proceedings concerning the 2003 development consent after the council's settlement offer or concession." 'Whether the applicant should pay costs thrown away occasioned by the late joinder of the Registrar-General.' 'Whether the council should pay indemnity costs for denying the advertising invalidity ground until the first day of hearing.' 'Whether the council should pay indemnity costs for contesting that Chapman Reserve was community land or a public reserve.' "Whether the applicant's costs of obtaining injunctions against other respondents should be excluded from costs payable by the council." 'Whether costs should be ordered against Arinson or the Omaya respondents.' 'Whether there should be any order as to costs of the costs applications.']

Ratio Decidendi

The applicant, as the successful party, was entitled to its costs against the council, but not the costs of obtaining injunctions against the second, third and fourth respondents. The applicant had not acted unreasonably in maintaining the 2002 development consent issue because it was linked to the challenge to the 2003 development consent. The council's 20 October 2006 correspondence was a settlement offer requiring abandonment of other claims, including the successful Chapman Reserve claim, and did not make the applicant's continued conduct unreasonable. Although the late joinder of the Registrar-General caused an adjournment, that was offset by the council's late production of...

Court Disposition

The council was ordered to pay the applicant's costs of the proceedings, except the applicant's costs of obtaining injunctions against the second, third and fourth respondents; no order was made as to the costs of the costs applications.

Orders

  • ["The first respondent is to pay the applicant's costs of the proceedings as agreed or assessed with the exception of the applicant's costs of obtaining injunctions against the second, third and fourth respondents." "The issue of the applicant's costs of obtaining injunctions against the third and fourth respondents...