Kenneth William Allport v Lismore City Council [2019] NSWLEC 177

Kenneth William Allport v Lismore City Council [2019] NSWLEC 177

It was not fair and reasonable to order costs in Mr Allport's favour because Council did not act unreasonably in filing the Contempt Motion and Expedition Motion. The discovery of asbestos containing material and the impending increase in Queensland waste disposal costs were beyond Council's reasonable control; Mr Allport had withdrawn access; his later purported consent was subject to restrictions that did not amount to effective access required by the orders; and Council reasonably no longer pressed its motions once access was resolved by lease. There was no relevant delinquency or special or unusual feature justifying indemnity costs.

Jurisdiction
Australia
Judgment Date
20 November 2019
Procedural Posture
Class 2 Costs Motion / Applicant's Notice of Motion Seeking Dismissal of Respondent's Two Notices of Motion and Indemnity Costs
Outcome
Applicant's motion dismissed; respondent's two motions dismissed; no order for costs.
Legal Topics
['costs in Class 2 Proceedings' 'indemnity Costs' 'dismissal of Notices of Motion' 'access to Land for Remediation Works' 'section 34 Conciliation Orders']
['costs' 'land and Environment Court Procedure' 'contempt Procedure'] ['costs in Class 2 Proceedings' 'indemnity Costs' 'dismissal of Notices of Motion' 'access to Land for Remediation Works' 'section 34 Conciliation Orders']

Case Brief

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Procedural Posture

Class 2 Costs Motion / Applicant's Notice of Motion Seeking Dismissal of Respondent's Two Notices of Motion and Indemnity Costs

Legal Issues

  1. 1 ["Whether it was fair and reasonable to order Lismore City Council to pay Mr Allport's costs of the Contempt Motion and Expedition Motion on the ordinary basis or indemnity basis." 'Whether Council acted unreasonably in filing or maintaining the Contempt Motion and Expedition Motion after Mr Allport withdrew and then purported to reinstate access to his land.' "Whether Council's conduct displayed the special or unusual features required for indemnity costs."]

Ratio Decidendi

It was not fair and reasonable to order costs in Mr Allport's favour because Council did not act unreasonably in filing the Contempt Motion and Expedition Motion. The discovery of asbestos containing material and the impending increase in Queensland waste disposal costs were beyond Council's reasonable control; Mr Allport had withdrawn access; his later purported consent was subject to restrictions that did not amount to effective access required by the orders; and Council reasonably no longer pressed its motions once access was resolved by lease. There was no relevant delinquency or special or unusual feature justifying indemnity costs.

Court Disposition

Applicant's motion dismissed; respondent's two motions dismissed; no order for costs.

Orders

  • ['The Notice of Motion filed by Lismore City Council on 6 May 2019 is dismissed.' 'The Notice of Motion filed by Lismore City Council on 13 May 2019 is dismissed.' 'The Notice of Motion filed by Kenneth William Allport on 31 July 2019 is dismissed.' 'No order for costs.']