Mangos and Anor. v Fairfield City Council [2003] NSWLEC 453

Mangos and Anor. v Fairfield City Council [2003] NSWLEC 453

Although the Court had power under Pt XI r 5 of the Rules of Court to order costs against a discontinuing party, the applicants' discontinuance was reasonable and justifiable in the litigation history: the Council's questions of law were raised after the statutory appeal was commenced against a merits refusal, counsel's opinion showed those questions were formidable, and the bulk of the Council's costs were incurred in raising those questions rather than wasted preparation caused by the discontinuance. The discretion to award costs should therefore not be exercised against the applicants.

Jurisdiction
Australia
Judgment Date
27 June 2003
Procedural Posture
Class 1 Proceedings Concerning Refusal of a Modification Application Under Environmental Planning and Assessment Act 1979, S 96 / Respondent's Application for Costs After the Applicants Filed a Notice of Discontinuance
Outcome
No order for costs.
Legal Topics
['discontinuance' 'planning Appeals' 'modification Application' 'costs Discretion' 'exceptional Circumstances']
['costs' 'planning and Environment' 'civil Procedure'] ['discontinuance' 'planning Appeals' 'modification Application' 'costs Discretion' 'exceptional Circumstances']

Case Brief

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Procedural Posture

Class 1 Proceedings Concerning Refusal of a Modification Application Under Environmental Planning and Assessment Act 1979, S 96 / Respondent's Application for Costs After the Applicants Filed a Notice of Discontinuance

Legal Issues

  1. 1 ["Whether the Court should order the discontinuing applicants to pay the Council's costs under Pt XI r 5 of the Rules of Court after discontinuance without the Council's consent." "Whether the applicants' discontinuance was reasonable and justifiable in the circumstances so as to negate the ordinary costs consequence of discontinuance in a planning appeal." "Whether the Council's costs were wasted by reason of the discontinuance."]

Ratio Decidendi

Although the Court had power under Pt XI r 5 of the Rules of Court to order costs against a discontinuing party, the applicants' discontinuance was reasonable and justifiable in the litigation history: the Council's questions of law were raised after the statutory appeal was commenced against a merits refusal, counsel's opinion showed those questions were formidable, and the bulk of the Council's costs were incurred in raising those questions rather than wasted preparation caused by the discontinuance. The discretion to award costs should therefore not be exercised against the applicants.

Court Disposition

No order for costs.

Orders

  • ['There should be no order for costs in the proceedings.']