Dowling v Haralambides [2015] NSWLEC 173

Dowling v Haralambides [2015] NSWLEC 173

The applicant was entitled to leave to discontinue because surrender of the complying development certificate removed the utility of the proceedings. Although practical success alone was insufficient, the respondents' conduct before and immediately after commencement, including failure to observe stop work requests and undertakings, continuing work despite serious unresolved questions about the validity of the complying development certificate, and only later pursuing development consent conditioned on surrender of the certificate, made it reasonable for the applicant to commence proceedings and justified departing from the default costs rule. The applicant therefore obtained an order...

Jurisdiction
Australia
Judgment Date
05 November 2015
Procedural Posture
Class 4 Proceedings Concerning the Validity of a Complying Development Certificate / Application for Leave to Discontinue and for an Alternative Costs Order
Outcome
Leave to discontinue granted; alternative costs order made in favour of the applicant.
Legal Topics
['leave to Discontinue Proceedings' 'validity of Complying Development Certificate' 'complying Development' 'development Consent' 'alternative Costs Order Under R 42.19(2) of the Uniform Civil Procedure Rules 2005' 'practical Success' 'reasonableness of Commencing Proceedings']
['planning and Environment Law' 'civil Procedure' 'costs'] ['leave to Discontinue Proceedings' 'validity of Complying Development Certificate' 'complying Development' 'development Consent' 'alternative Costs Order Under R 42.19(2) of the Uniform Civil Procedure Rules 2005' 'practical Success' 'reasonableness of Commencing Proceedings']

Case Brief

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Procedural Posture

Class 4 Proceedings Concerning the Validity of a Complying Development Certificate / Application for Leave to Discontinue and for an Alternative Costs Order

Legal Issues

  1. 1 ['Whether the applicant should be granted leave under r 12.1(1)(b) of the Uniform Civil Procedure Rules 2005 to discontinue the whole of the proceedings.' "Whether the default costs position in r 42.19(2) of the Uniform Civil Procedure Rules 2005 should be displaced by an order that the respondents pay the applicant's costs." "Whether the applicant achieved practical success and whether there were extra circumstances, including unreasonable conduct by the respondents, justifying a costs order in the applicant's favour."]

Ratio Decidendi

The applicant was entitled to leave to discontinue because surrender of the complying development certificate removed the utility of the proceedings. Although practical success alone was insufficient, the respondents' conduct before and immediately after commencement, including failure to observe stop work requests and undertakings, continuing work despite serious unresolved questions about the validity of the complying development certificate, and only later pursuing development consent conditioned on surrender of the certificate, made it reasonable for the applicant to commence proceedings and justified departing from the default costs rule. The applicant therefore obtained an order...

Court Disposition

Leave to discontinue granted; alternative costs order made in favour of the applicant.

Orders

  • ['Pursuant to r 12.1(1)(b) of the Uniform Civil Procedure Rules 2005 leave is given to the applicant to file a notice of discontinuance in respect of the whole of these proceedings.' 'The applicant is directed to file a notice of discontinuance in the Registry within 7 days.' "The respondents are ordered to pay the...