Inner West Council v Sheree Waks [2018] NSWLEC 41

Inner West Council v Sheree Waks [2018] NSWLEC 41

Council obtained substantially the orders it originally sought and the matter was properly characterised as a surrender case. Council's conduct before and during the proceedings, including its refusal of the respondents' offers and pursuit of interlocutory relief, was not disentitling because it had genuine planning, building and fire safety concerns and was entitled to maintain a firm but reasonable enforcement position. Costs therefore followed the event, except that there should be no costs order for the Second Motion heard before Moore J because that motion was dismissed but had some merit and potential costs-saving value, and involved related Class 1 proceedings where no costs order...

Jurisdiction
Australia
Judgment Date
28 March 2018
Procedural Posture
Class 4 Proceedings Concerning Costs After Resolution by Consent Orders / Notice of Motion for Costs
Outcome
The respondents' Notice of Motion was dismissed; the respondents were ordered to pay Council's costs except for the motion heard before Moore J on 19 August 2016, for which there was no costs order.
Legal Topics
['costs Follow the Event' 'surrender in Civil Enforcement Proceedings' 'disentitling Conduct' 'offers of Compromise' 'fire Safety Concerns' 'use as Boarding House']
['costs' 'civil Procedure' 'planning and Environment' 'local Government Enforcement'] ['costs Follow the Event' 'surrender in Civil Enforcement Proceedings' 'disentitling Conduct' 'offers of Compromise' 'fire Safety Concerns' 'use as Boarding House']

Case Brief

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Procedural Posture

Class 4 Proceedings Concerning Costs After Resolution by Consent Orders / Notice of Motion for Costs

Legal Issues

  1. 1 ['Whether the respondents or Council should receive the costs of the Class 4 proceedings after the substantive dispute was resolved by consent orders and undertakings.' 'Whether the proceedings were a surrender case in which costs should follow the event.' 'Whether Council engaged in disentitling conduct by its pre-litigation conduct, refusal of offers, prosecution of interlocutory motions, or alleged failure to mediate or act as a model litigant.' 'Whether any costs should be apportioned or whether no costs order should be made for the motion to consolidate the Class 1 and Class 4 proceedings.']

Ratio Decidendi

Council obtained substantially the orders it originally sought and the matter was properly characterised as a surrender case. Council's conduct before and during the proceedings, including its refusal of the respondents' offers and pursuit of interlocutory relief, was not disentitling because it had genuine planning, building and fire safety concerns and was entitled to maintain a firm but reasonable enforcement position. Costs therefore followed the event, except that there should be no costs order for the Second Motion heard before Moore J because that motion was dismissed but had some merit and potential costs-saving value, and involved related Class 1 proceedings where no costs order...

Court Disposition

The respondents' Notice of Motion was dismissed; the respondents were ordered to pay Council's costs except for the motion heard before Moore J on 19 August 2016, for which there was no costs order.

Orders

  • ['The Notice of Motion is dismissed.' 'There is no order for costs in respect of the Notice of Motion heard before Moore J on 19 August 2016.' "The respondents are otherwise to pay the applicant's costs."]