Marrickville Council v Cleary [2015] NSWLEC 24

Marrickville Council v Cleary [2015] NSWLEC 24

The Council gave sufficient notice of its intention to commence proceedings in view of an urgent and real fire risk, and the Respondents’ own delays in obtaining and responding to the Council’s orders do not disentitle the Council to costs. The Council’s conduct was reasonable; therefore, costs should follow the event and be awarded to the Council.

Parties
Applicant: Marrickville Council; First Respondent: Mark Stephen Cleary; Second Respondent: Mark Cleary and Associates Pty Ltd; Third Respondent: Shu Min Zhang; Fourth Respondent: Edward Gee
Jurisdiction
Australia
Judgment Date
17 February 2015
Procedural Posture
Class 4 Civil Enforcement / Costs Order Following Resolution of Interlocutory Matters
Outcome
First and Second Respondents to pay Applicant’s costs. Proceedings otherwise dismissed.
Legal Topics
Costs, Enforcement of Planning Laws, Adequacy of Notice Prior to Litigation, Disentitling Conduct, Interlocutory Proceedings
Planning and Environment Law Civil Procedure Costs Enforcement of Planning Laws Adequacy of Notice Prior to Litigation Disentitling Conduct Interlocutory Proceedings

Case Brief

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Parties

Marrickville Council

Applicant

Mark Stephen Cleary

First Respondent

Mark Cleary and Associates Pty Ltd

Second Respondent

Shu Min Zhang

Third Respondent

Edward Gee

Fourth Respondent

Procedural Posture

Class 4 Civil Enforcement / Costs Order Following Resolution of Interlocutory Matters

Legal Issues

  1. 1 Whether Marrickville Council is entitled to costs or is disentitled due to alleged lack of reasonable notice before commencing proceedings.
  2. 2 Whether Council's conduct, in terms of notice and urgency, warrants a different costs order.

Ratio Decidendi

The Council gave sufficient notice of its intention to commence proceedings in view of an urgent and real fire risk, and the Respondents’ own delays in obtaining and responding to the Council’s orders do not disentitle the Council to costs. The Council’s conduct was reasonable; therefore, costs should follow the event and be awarded to the Council.

Court Disposition

First and Second Respondents to pay Applicant’s costs. Proceedings otherwise dismissed.

Orders

  • The First and Second Respondents must pay the Applicant's costs of the proceedings.
  • The proceedings are otherwise dismissed.