Dillon v Gosford City Council [2011] NSWCA 328

Dillon v Gosford City Council [2011] NSWCA 328

The appeal was dismissed as to substantive orders because no error of law was demonstrated regarding market value assessment, operation of s 59A, reopening powers, and disturbance compensation. However, the order requiring the appellants to pay half the respondent's costs for the second stage was not justified, as claimants for compulsory acquisition, acting reasonably, should not be required to pay the acquiring authority's costs in those circumstances. The costs order was set aside and replaced so each party bears own costs for the second stage.

Parties
First Appellant: Kevin Walter Dillon; Second Appellant: Kerry Ann Dillon; Respondent: Gosford City Council
Jurisdiction
Australia
Judgment Date
26 October 2011
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed in part (costs order); substantive appeal dismissed; costs order varied.
Legal Topics
Compulsory Acquisition, Easement, Stormwater Control, Valuation Proceedings, Costs Orders, Disturbance Compensation
Property Law Environment and Planning Law Civil Procedure Compulsory Acquisition Easement Stormwater Control Valuation Proceedings Costs Orders +1 more

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Parties

Kevin Walter Dillon

First Appellant

Kerry Ann Dillon

Second Appellant

Gosford City Council

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Proper construction of the notice of acquisition for an easement
  2. 2 Operation of s 59A of the Local Government Act 1993 (NSW)
  3. 3 Reopening assessment of market value

Ratio Decidendi

The appeal was dismissed as to substantive orders because no error of law was demonstrated regarding market value assessment, operation of s 59A, reopening powers, and disturbance compensation. However, the order requiring the appellants to pay half the respondent's costs for the second stage was not justified, as claimants for compulsory acquisition, acting reasonably, should not be required to pay the acquiring authority's costs in those circumstances. The costs order was set aside and replaced so each party bears own costs for the second stage.

Court Disposition

Appeal allowed in part (costs order); substantive appeal dismissed; costs order varied.

Orders

  • Allow appeal against costs order for second stage; dismiss substantive appeal.
  • Set aside Land and Environment Court order (9) dated 16 September 2010; direct each party bear its own costs for proceedings not covered by other orders.