Lismore City Council v Dajoco Investments Pty Ltd [2022] NSWLEC 28

Lismore City Council v Dajoco Investments Pty Ltd [2022] NSWLEC 28

The deck, kitchen and stove, and residential use issues were clearly separable and discrete, so it was appropriate to apportion costs. Council was largely successful on the deck only to the extent that the deck was not exempt development, but it did not obtain the declaration or rectification order sought and much of the contested evidence related to an aspect on which it did not succeed. Council was unsuccessful on the kitchen and stove issue, which lacked a reasonable basis for pursuit. Council was successful on the residential use issue, but the genuinely disputed caretaker-use aspect did not take the bulk of the hearing time and Council did not obtain all relief sought. The withdrawn...

Jurisdiction
Australia
Judgment Date
28 March 2022
Procedural Posture
Class 4 Civil Enforcement Proceedings; Costs Application by Notice of Motion / Costs Following Judgment in Substantive Proceedings
Outcome
Costs apportioned; Council partly successful on the Notice of Motion.
Legal Topics
['discretion to Award Costs' 'costs Following the Event' 'apportionment of Costs' 'discrete and Separable Issues' 'civil Enforcement Proceedings']
['costs' 'civil Procedure' 'environmental Planning and Assessment'] ['discretion to Award Costs' 'costs Following the Event' 'apportionment of Costs' 'discrete and Separable Issues' 'civil Enforcement Proceedings']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Class 4 Civil Enforcement Proceedings; Costs Application by Notice of Motion / Costs Following Judgment in Substantive Proceedings

Legal Issues

  1. 1 ["Whether the Respondents should pay the Applicant's costs of the proceedings and of the costs motion." 'Whether costs should be apportioned because the Applicant was only partly successful on discrete issues.' 'Whether the deck, kitchen and stove, and prohibited residential use issues were clearly separable and discrete for costs purposes.' 'Whether costs should be awarded in relation to withdrawn spa and carport claims.' 'Whether each party should bear its own costs of the Notice of Motion.']

Ratio Decidendi

The deck, kitchen and stove, and residential use issues were clearly separable and discrete, so it was appropriate to apportion costs. Council was largely successful on the deck only to the extent that the deck was not exempt development, but it did not obtain the declaration or rectification order sought and much of the contested evidence related to an aspect on which it did not succeed. Council was unsuccessful on the kitchen and stove issue, which lacked a reasonable basis for pursuit. Council was successful on the residential use issue, but the genuinely disputed caretaker-use aspect did not take the bulk of the hearing time and Council did not obtain all relief sought. The withdrawn...

Court Disposition

Costs apportioned; Council partly successful on the Notice of Motion.

Orders

  • ['The Respondents pay 40 per cent of the total costs of the proceedings.' 'Council pay 50 per cent of the transcript costs.' 'Each party bear their own costs for the costs of this Notice of Motion.']