Moodley T v Botany Bay City Council [2004] NSWLEC 183

Moodley T v Botany Bay City Council [2004] NSWLEC 183

The applicant failed to establish any compelling evidence or exceptional circumstances for the granting of costs. The council's conditional consent was within normal processing discretion, and the imposition of the Positive Covenant condition was not unfair or contrary to Court practice. Therefore, the costs application is dismissed. However, since additional costs were incurred for the costs hearing, and no fair and reasonable basis exists for a primary award of costs, the applicant is ordered to pay the respondent's costs of the application for costs, subject to Chief Judge's concurrence.

Parties
Applicant: Moodley T; Respondent: Botany Bay City Council
Jurisdiction
Australia
Judgment Date
21 May 2004
Procedural Posture
Costs Application / Post Merit Appeals; Costs Determination After Substantive Appeal Judgment
Outcome
Costs application by applicant dismissed; applicant to pay respondent's costs of the costs application subject to the Chief Judge's concurrence.
Legal Topics
Costs Orders, Planning Appeals, Judicial Review of Administrative Decisions
Environmental Law Planning Law Civil Procedure Costs Orders Planning Appeals Judicial Review of Administrative Decisions

Case Brief

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Parties

Moodley T

Applicant

Botany Bay City Council

Respondent

Procedural Posture

Costs Application / Post Merit Appeals; Costs Determination After Substantive Appeal Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to an order for costs of the merit appeals
  2. 2 Whether the council is entitled to costs of the costs application

Ratio Decidendi

The applicant failed to establish any compelling evidence or exceptional circumstances for the granting of costs. The council's conditional consent was within normal processing discretion, and the imposition of the Positive Covenant condition was not unfair or contrary to Court practice. Therefore, the costs application is dismissed. However, since additional costs were incurred for the costs hearing, and no fair and reasonable basis exists for a primary award of costs, the applicant is ordered to pay the respondent's costs of the application for costs, subject to Chief Judge's concurrence.

Court Disposition

Costs application by applicant dismissed; applicant to pay respondent's costs of the costs application subject to the Chief Judge's concurrence.

Orders

  • The motion for costs of the merit appeals is dismissed.
  • Subject to the concurrence of the Chief Judge, the applicant is to pay the respondent's costs of the application for the costs of the merit appeal.