Rochford v Melis [2013] NSWLEC 2

Rochford v Melis [2013] NSWLEC 2

The applicant had good reason for an order otherwise under UCPR r 42.19. The proceedings were a reasonable last resort after repeated withdrawal of permission and attempts to resolve the dispute, and the respondent's later cessation of the impugned access meant the substance of the Class 4 claim had been satisfied. In those circumstances, the applicant was entitled to recover his costs of the discontinued proceedings and of arguing costs.

Jurisdiction
Australia
Judgment Date
29 January 2013
Procedural Posture
Class 4 Proceedings; Costs on Discontinuation / Application for Leave to Discontinue Proceedings by Consent and Determination of Costs
Outcome
Leave granted to discontinue the proceedings by consent; respondent ordered to pay the applicant's costs.
Legal Topics
['discontinuation of Proceedings' 'costs Following Discontinuance' 'development Consent and Occupation Certificate' 'right of Carriageway and Access']
['planning and Environment' 'civil Procedure' 'costs'] ['discontinuation of Proceedings' 'costs Following Discontinuance' 'development Consent and Occupation Certificate' 'right of Carriageway and Access']

Case Brief

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Procedural Posture

Class 4 Proceedings; Costs on Discontinuation / Application for Leave to Discontinue Proceedings by Consent and Determination of Costs

Legal Issues

  1. 1 ['Whether leave should be granted to the applicant to discontinue Class 4 proceedings that no longer had utility.' "Whether the respondent should pay the applicant's costs notwithstanding UCPR r 42.19, where the applicant discontinued the proceedings." "Whether the circumstances amounted to the respondent's surrender rather than a supervening event."]

Ratio Decidendi

The applicant had good reason for an order otherwise under UCPR r 42.19. The proceedings were a reasonable last resort after repeated withdrawal of permission and attempts to resolve the dispute, and the respondent's later cessation of the impugned access meant the substance of the Class 4 claim had been satisfied. In those circumstances, the applicant was entitled to recover his costs of the discontinued proceedings and of arguing costs.

Court Disposition

Leave granted to discontinue the proceedings by consent; respondent ordered to pay the applicant's costs.

Orders

  • ['That leave be granted to the applicant to discontinue the proceedings, by consent.' "That the respondent pay the applicant's costs of and incidental to the proceedings, including the applicant's costs of the costs hearing on 7 September 2012, on a party-party basis, as agreed or assessed." 'That all exhibits be...