Eather v Mosman Municipal Council [2012] NSWLEC 92

Eather v Mosman Municipal Council [2012] NSWLEC 92

Although r 42.19 placed an onus on Mrs Eather as the discontinuing party to justify a departure from the ordinary costs consequence, the settlement with the second and third respondents was not a surrender to the council but a supervening event that removed or modified the real subject of the dispute, being the amenity and privacy impact of the inclinator. The proceedings were reasonably commenced and pursued until settlement because judicial review was the available means of preserving her challenge within the statutory time limit. However, Mrs Eather acted sufficiently unreasonably by late notification of settlement negotiations and by failing to seek a cessation of the Court timetable,...

Jurisdiction
Australia
Judgment Date
01 May 2012
Procedural Posture
Class 4 Judicial Review Proceedings Concerning Development Consent / Costs Determination Upon Discontinuance Following Settlement and Approval of a S 96 Modification Application
Outcome
Proceedings discontinued; partial costs orders made.
Legal Topics
['costs on Discontinuance' 'uniform Civil Procedure Rules 2005, R 42.19' 'judicial Review of Development Consent' 'settlement' 'discontinuance of Proceedings']
['civil Procedure' 'planning and Environment Law'] ['costs on Discontinuance' 'uniform Civil Procedure Rules 2005, R 42.19' 'judicial Review of Development Consent' 'settlement' 'discontinuance of Proceedings']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 4 Judicial Review Proceedings Concerning Development Consent / Costs Determination Upon Discontinuance Following Settlement and Approval of a S 96 Modification Application

Legal Issues

  1. 1 ['Who should pay costs after the applicant discontinued Class 4 judicial review proceedings following settlement with the second and third respondents.' "Whether r 42.19 of the Uniform Civil Procedure Rules 2005 required the applicant to pay the council's costs or whether there was good reason to depart from that ordinary course." 'Whether the settlement was a surrender by the applicant or a supervening event that removed or modified the subject-matter of the dispute leaving only costs.' 'Whether the conduct of the applicant in not notifying the Court and seeking suspension of preparation timetables during settlement negotiations justified a partial costs order.']

Ratio Decidendi

Although r 42.19 placed an onus on Mrs Eather as the discontinuing party to justify a departure from the ordinary costs consequence, the settlement with the second and third respondents was not a surrender to the council but a supervening event that removed or modified the real subject of the dispute, being the amenity and privacy impact of the inclinator. The proceedings were reasonably commenced and pursued until settlement because judicial review was the available means of preserving her challenge within the statutory time limit. However, Mrs Eather acted sufficiently unreasonably by late notification of settlement negotiations and by failing to seek a cessation of the Court timetable,...

Court Disposition

Proceedings discontinued; partial costs orders made.

Orders

  • ['The proceedings are discontinued.' "Mrs Eather is to pay 25% of the council's costs of the proceedings." "The council is to pay 75% of Mrs Eather's costs of the motions."]