Brent v Levick and Others [2009] NSWLEC 40

Brent v Levick and Others [2009] NSWLEC 40

The proceedings were not premature or precipitate, the certifier was properly joined, and the Council's December approval of the modified s96 application was a supervening event that achieved the Applicant's objectives and removed the need to continue the proceedings. As against the Hainsworths, the Applicant was effectively successful because the necessary shift in their position was not shown to be likely absent the proceedings, so the Third and Fourth Respondents should pay the Applicant's costs. As against BCA, although joinder was proper and the case was not shown to be doomed, the Applicant did not establish an entitlement to have BCA pay her costs, so each should bear its own costs.

Jurisdiction
Australia
Judgment Date
09 April 2009
Procedural Posture
Class 4 Proceedings / Costs Determination After Discontinued Proceedings
Outcome
Costs ordered partly in favour of the Applicant against the Third and Fourth Respondents; otherwise each relevant party to bear its own costs.
Legal Topics
['discontinued Proceedings' 'costs Discretion' 'construction Certificate' 'development Consent' 'section 96 Modification Application' 'joinder of Certifier']
['environmental Planning and Development' 'civil Procedure' 'costs'] ['discontinued Proceedings' 'costs Discretion' 'construction Certificate' 'development Consent' 'section 96 Modification Application' 'joinder of Certifier']

Case Brief

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Procedural Posture

Class 4 Proceedings / Costs Determination After Discontinued Proceedings

Legal Issues

  1. 1 ["Whether the discontinuing Applicant should pay the Respondents' costs under Uniform Civil Procedure Rules 42.19 or whether the Court should otherwise order." 'Whether any party was successful in the discontinued Class 4 proceedings.' 'Whether all Respondents, including the certifier, were necessarily joined.' 'Whether commencement of the proceedings was premature or precipitate.' "Whether the Council's approval of the modification application was a supervening event removing the need to continue the proceedings."]

Ratio Decidendi

The proceedings were not premature or precipitate, the certifier was properly joined, and the Council's December approval of the modified s96 application was a supervening event that achieved the Applicant's objectives and removed the need to continue the proceedings. As against the Hainsworths, the Applicant was effectively successful because the necessary shift in their position was not shown to be likely absent the proceedings, so the Third and Fourth Respondents should pay the Applicant's costs. As against BCA, although joinder was proper and the case was not shown to be doomed, the Applicant did not establish an entitlement to have BCA pay her costs, so each should bear its own costs.

Court Disposition

Costs ordered partly in favour of the Applicant against the Third and Fourth Respondents; otherwise each relevant party to bear its own costs.

Orders

  • ["As between the Applicant and the Third and Fourth Respondents, those Respondents are ordered, jointly and severally, to pay the Applicant's costs on a party-party basis as agreed or assessed." 'As between the Applicant and the First and Second Respondents, each party is ordered to pay its own costs.' "Each party...