Anderson v Lake Macquarie City Council [2013] NSWLEC 96

Anderson v Lake Macquarie City Council [2013] NSWLEC 96

It was not fair and reasonable to depart from the Class 2 presumption against costs because the s 126 issue was only one of many legal and factual issues tried together, the applicant succeeded only on that issue and did not seek its separate or preliminary determination, most other issues were determined against him or not determined in his favour, and the Council's construction argument that s 126 did not apply was not so hopeless as to make its issuing of the order or defence of the appeal unreasonable. The applicant's unsuccessful costs motion was a separate costs application, so it was fair and reasonable that he pay the Council's costs of that motion.

Jurisdiction
Australia
Judgment Date
13 June 2013
Procedural Posture
Class 2 Appeal Under S 180(1) of the Local Government Act 1993 Against an Order Under S 124 of That Act / Applicant's Notice of Motion for Costs Dated 26 March 2013 After the Appeal Was Upheld and the Council's Order Revoked
Outcome
Applicant's notice of motion for costs dismissed; applicant ordered to pay respondent's costs of the notice of motion for costs.
Legal Topics
['costs in Class 2 Proceedings' 'council Order Requiring Demolition and Removal of Seawall' 'crown Reserve' 'prior Written Ministerial Consent Under S 126 of the Local Government Act 1993' 'reasonable Prospects of Success' 'unreasonable Conduct Before or During Proceedings']
['costs' 'local Government' 'land and Environment' 'administrative Law'] ['costs in Class 2 Proceedings' 'council Order Requiring Demolition and Removal of Seawall' 'crown Reserve' 'prior Written Ministerial Consent Under S 126 of the Local Government Act 1993' 'reasonable Prospects of Success' 'unreasonable Conduct Before or During Proceedings']

Case Brief

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Procedural Posture

Class 2 Appeal Under S 180(1) of the Local Government Act 1993 Against an Order Under S 124 of That Act / Applicant's Notice of Motion for Costs Dated 26 March 2013 After the Appeal Was Upheld and the Council's Order Revoked

Legal Issues

  1. 1 ["Whether it was fair and reasonable under r 3.7 of the Land and Environment Court Rules 2007 to order the Council to pay the applicant's costs of the appeal." 'Whether the Council acted unreasonably in circumstances leading up to the appeal by giving an order under s 124 of the Local Government Act 1993 without obtaining prior written Ministerial consent under s 126.' 'Whether the Council maintained a defence to the appeal where the defence did not have reasonable prospects of success or was otherwise unreasonable.' "Whether the applicant's success on only the s 126 issue, without having sought separate or preliminary determination of that issue, affected the costs discretion." "Whether the applicant should pay the Council's costs of the unsuccessful costs motion."]

Ratio Decidendi

It was not fair and reasonable to depart from the Class 2 presumption against costs because the s 126 issue was only one of many legal and factual issues tried together, the applicant succeeded only on that issue and did not seek its separate or preliminary determination, most other issues were determined against him or not determined in his favour, and the Council's construction argument that s 126 did not apply was not so hopeless as to make its issuing of the order or defence of the appeal unreasonable. The applicant's unsuccessful costs motion was a separate costs application, so it was fair and reasonable that he pay the Council's costs of that motion.

Court Disposition

Applicant's notice of motion for costs dismissed; applicant ordered to pay respondent's costs of the notice of motion for costs.

Orders

  • ["The applicant's notice of motion for costs dated 26 March 2013 is dismissed." "The applicant is to pay the respondent's costs in relation to the applicant's notice of motion for costs dated 26 March 2013."]