Gosford City Council v Verde Terra Pty Ltd (No 2) [2013] NSWLEC 62

Gosford City Council v Verde Terra Pty Ltd (No 2) [2013] NSWLEC 62

The Council was granted leave to discontinue against Bingo Group Pty Limited, but its persistent resistance to Bingo Group Pty Limited's removal motion despite material denying involvement, followed by capitulation, constituted special and unjust circumstances warranting indemnity costs, immediate assessment and payment, and setting aside earlier costs orders as they related to Bingo Group Pty Limited. The fourth respondent's motion was dismissed because the amended pleading achieved the result sought, but the Council's maintenance of breach and remedial claims despite the Trustees' stated position and cited authorities warranted costs of the motion and costs thrown away on an indemnity...

Jurisdiction
Australia
Judgment Date
03 May 2013
Procedural Posture
Class 4 Proceedings Seeking Declarations and Injunctions Arising From Alleged Breaches of the Environmental Planning and Assessment Act 1979 / Determination of Interlocutory Notices of Motion and Procedural Applications
Outcome
Applicant granted leave to discontinue against Bingo Group Pty Limited, granted leave to amend and rely on further amended documents, and granted leave to join Mangrove Mountain Landfill Pty Ltd; fourth respondent's motion dismissed; indemnity and thrown-away costs orders and case management directions made.
Legal Topics
['discontinuance' 'joinder of Parties' 'amendment of Summons and Points of Claim' 'indemnity Costs' 'costs Thrown Away' 'case Management Directions' 'alleged Unauthorised Development']
['practice and Procedure' 'costs' 'environmental Planning and Assessment'] ['discontinuance' 'joinder of Parties' 'amendment of Summons and Points of Claim' 'indemnity Costs' 'costs Thrown Away' 'case Management Directions' 'alleged Unauthorised Development']

Case Brief

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Procedural Posture

Class 4 Proceedings Seeking Declarations and Injunctions Arising From Alleged Breaches of the Environmental Planning and Assessment Act 1979 / Determination of Interlocutory Notices of Motion and Procedural Applications

Legal Issues

  1. 1 ["Whether the applicant should have leave to discontinue proceedings against Bingo Group Pty Limited and whether that discharged Bingo Group Pty Limited's removal motion." "Whether the applicant should pay Bingo Group Pty Limited's costs on an indemnity basis and whether earlier costs orders should be set aside." "Whether the fourth respondent's motion should be dismissed and what costs order should be made in favour of the fourth respondent." 'Whether the applicant should have leave to file and rely on a further amended summons and further amended points of claim.' 'Whether Mangrove Mountain Landfill Pty Ltd should be joined as a respondent.' 'What directions should be made for the further conduct of the proceedings.']

Ratio Decidendi

The Council was granted leave to discontinue against Bingo Group Pty Limited, but its persistent resistance to Bingo Group Pty Limited's removal motion despite material denying involvement, followed by capitulation, constituted special and unjust circumstances warranting indemnity costs, immediate assessment and payment, and setting aside earlier costs orders as they related to Bingo Group Pty Limited. The fourth respondent's motion was dismissed because the amended pleading achieved the result sought, but the Council's maintenance of breach and remedial claims despite the Trustees' stated position and cited authorities warranted costs of the motion and costs thrown away on an indemnity...

Court Disposition

Applicant granted leave to discontinue against Bingo Group Pty Limited, granted leave to amend and rely on further amended documents, and granted leave to join Mangrove Mountain Landfill Pty Ltd; fourth respondent's motion dismissed; indemnity and thrown-away costs orders and case management directions made.

Orders

  • ['Leave to the applicant to discontinue the proceedings against Bingo Group Pty Limited upon filing a notice of discontinuance by 4.00pm on Monday 6 May 2013.' "Costs orders made on 4 February 2013 and 19 February 2013 set aside so far as they required payment by the applicant of Bingo Group Pty Limited's costs of...