John Griffin trading as John Griffin Constructions Development v Mosman Council [2009] NSWLEC 1004

John Griffin trading as John Griffin Constructions Development v Mosman Council [2009] NSWLEC 1004

It was not fair or reasonable to depart from the ordinary rule against costs in Class 1 proceedings because the Applicant had the opportunity to amend its plans significantly during the appeal and, but for those amendments, the appeal would not have been approved; additionally, there was no evidence that the costs of the Notice of Motion raising the point of law were reserved.

Jurisdiction
Australia
Judgment Date
09 January 2009
Procedural Posture
Class 1 Development Appeal; Notice of Motion for Costs / Notice of Motion Filed on 2 May 2008 After the Appeal Was Upheld
Outcome
The Notice of Motion was dismissed and the Applicant was ordered to pay the Respondent's costs of the Notice of Motion as agreed or assessed.
Legal Topics
['class 1 Development Appeal' 'costs Thrown Away' 'existing Use Rights' 'amended Plans' 'conditions of Consent']
['planning and Environment' 'costs'] ['class 1 Development Appeal' 'costs Thrown Away' 'existing Use Rights' 'amended Plans' 'conditions of Consent']

Case Brief

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Procedural Posture

Class 1 Development Appeal; Notice of Motion for Costs / Notice of Motion Filed on 2 May 2008 After the Appeal Was Upheld

Legal Issues

  1. 1 ['Whether it was fair and reasonable to make a costs order in Class 1 proceedings.' 'Whether the Respondent should pay costs thrown away as a consequence of its Notice of Motion dated 11 September 2007 raising a legal issue about existing use rights which was not pursued.' 'Whether the Respondent should pay costs thrown away as a consequence of failing to lodge agreed conditions within 5 days after 14 March 2008.' 'Whether costs in respect of the abandoned legal issue were reserved.']

Ratio Decidendi

It was not fair or reasonable to depart from the ordinary rule against costs in Class 1 proceedings because the Applicant had the opportunity to amend its plans significantly during the appeal and, but for those amendments, the appeal would not have been approved; additionally, there was no evidence that the costs of the Notice of Motion raising the point of law were reserved.

Court Disposition

The Notice of Motion was dismissed and the Applicant was ordered to pay the Respondent's costs of the Notice of Motion as agreed or assessed.

Orders

  • ['The Notice of Motion filed on 2 May 2008 is dismissed.' "The Applicant is ordered to pay the Respondent's of this Notice of Motion costs as agreed or assessed."]