Kurnell Lodge Pty Limited v Bourne & Anor [2004] NSWLEC 329

Kurnell Lodge Pty Limited v Bourne & Anor [2004] NSWLEC 329

Because the respondents' undertakings satisfied the applicant's claim after the proceedings had been commenced, the proceedings were justifiably commenced and continued until those undertakings were given, and Pt 15 r 7 of the Land and Environment Court Rules 1996 could be applied; no disentitling conduct by the applicant was established because the respondents' correspondence did not state when they would comply with the development consent conditions.

Jurisdiction
Australia
Judgment Date
24 May 2004
Procedural Posture
Application for Costs Following Proceedings Seeking Declaratory and Injunctive Relief Concerning Alleged Non Compliance With a Development Consent / Ex Tempore Judgment After Settlement by Undertakings to the Court
Outcome
Respondents ordered to pay the applicant's costs; proceedings otherwise dismissed.
Legal Topics
['costs Discretion' 'undertaking to the Court' 'development Consent Compliance' 'claim Satisfied After Proceedings Commenced']
['costs' 'planning and Environment Law'] ['costs Discretion' 'undertaking to the Court' 'development Consent Compliance' 'claim Satisfied After Proceedings Commenced']

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Procedural Posture

Application for Costs Following Proceedings Seeking Declaratory and Injunctive Relief Concerning Alleged Non Compliance With a Development Consent / Ex Tempore Judgment After Settlement by Undertakings to the Court

Legal Issues

  1. 1 ['Whether the applicant was entitled to costs where the respondents gave undertakings after proceedings were commenced, leaving only costs to be determined.' "Whether Pt 15 r 7 of the Land and Environment Court Rules 1996 applied because the respondents satisfied or caused to be satisfied the applicant's claim after proceedings commenced." 'Whether any conduct of the applicant disentitled it to costs.']

Ratio Decidendi

Because the respondents' undertakings satisfied the applicant's claim after the proceedings had been commenced, the proceedings were justifiably commenced and continued until those undertakings were given, and Pt 15 r 7 of the Land and Environment Court Rules 1996 could be applied; no disentitling conduct by the applicant was established because the respondents' correspondence did not state when they would comply with the development consent conditions.

Court Disposition

Respondents ordered to pay the applicant's costs; proceedings otherwise dismissed.

Orders

  • ["The respondents pay the applicant's costs." 'The proceedings are otherwise dismissed.' 'The exhibits may be returned.']