Gunning Shire Council v Phantastes [2001] NSWLEC 64

Gunning Shire Council v Phantastes [2001] NSWLEC 64

The Council was entitled to its costs because the consent orders effectively gave it the relief sought, the proceedings were justifiably commenced, continued and settled, and in all probability would have succeeded if fully litigated. Mr Phantastes had a genuine argument against paying the Council's costs but made out no case for an order that the Council pay his costs, and no disentitling conduct by the Council was shown. Costs were limited by excluding each party's costs of two applications to vacate hearing dates and by allowing six months for payment.

Jurisdiction
Australia
Judgment Date
05 February 2001
Procedural Posture
Class 4 Proceedings in the Land and Environment Court of New South Wales Concerning Enforcement of a Demolition Order Under S 121 B of the Environmental Planning and Assessment Act 1979 / Notices of Motion for Costs After the Proceedings Were Settled by Consent Orders Without Hearing
Outcome
The respondent was ordered to pay the applicant's reasonable costs of the proceedings and the costs of the costs motions, subject to specified exclusions, with six months to pay; the respondent's application for costs was refused; and Order 1 of the Court's orders of 9 October 2000 was discharged by consent.
Legal Topics
['class 4 Proceedings' 'demolition Order' 'development Consent' 'settlement Without Hearing' 'party/party Costs' 'notices of Motion for Costs']
['environmental Planning and Development' 'land and Environment Court Proceedings' 'costs'] ['class 4 Proceedings' 'demolition Order' 'development Consent' 'settlement Without Hearing' 'party/party Costs' 'notices of Motion for Costs']

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Procedural Posture

Class 4 Proceedings in the Land and Environment Court of New South Wales Concerning Enforcement of a Demolition Order Under S 121 B of the Environmental Planning and Assessment Act 1979 / Notices of Motion for Costs After the Proceedings Were Settled by Consent Orders Without Hearing

Legal Issues

  1. 1 ['Whether the applicant or respondent should receive costs after settled Class 4 proceedings.' "Whether the Council's proceedings were justifiably commenced, continued, settled and likely to have succeeded if fully litigated." 'Whether there was disentitling conduct by the Council warranting denial of costs.' "Whether costs should be adjusted because hearing dates were vacated following the respondent's family tragedy."]

Ratio Decidendi

The Council was entitled to its costs because the consent orders effectively gave it the relief sought, the proceedings were justifiably commenced, continued and settled, and in all probability would have succeeded if fully litigated. Mr Phantastes had a genuine argument against paying the Council's costs but made out no case for an order that the Council pay his costs, and no disentitling conduct by the Council was shown. Costs were limited by excluding each party's costs of two applications to vacate hearing dates and by allowing six months for payment.

Court Disposition

The respondent was ordered to pay the applicant's reasonable costs of the proceedings and the costs of the costs motions, subject to specified exclusions, with six months to pay; the respondent's application for costs was refused; and Order 1 of the Court's orders of 9 October 2000 was discharged by consent.

Orders

  • ["The respondent is ordered to pay the applicant's reasonable costs of the proceedings, on a party/party basis, except that each party will pay its own respective costs of the application of 25 February 2000 to vacate the hearing dates 20-22 March 2000 and the application of 23 May 2000 to vacate the hearing dates...