Khoury v Holroyd City Council [2014] NSWLEC 37

Khoury v Holroyd City Council [2014] NSWLEC 37

It was fair and reasonable to order Mr Khoury to pay only the Council's costs thrown away in preparing for and attending the hearing after the conciliation conference because, although it was not unreasonable to lodge and prosecute the appeal through conciliation, he acted unreasonably by failing to give prior notice that he wished to withdraw and delaying that notification until the first day of hearing after the Council had prepared for a contested hearing. The Council did not establish that Mr Khoury had failed to file essential documents required by law, and the Court could not determine that his appeal lacked reasonable prospects because he never ran or identified his case. The...

Jurisdiction
Australia
Judgment Date
17 March 2014
Procedural Posture
Class 1 Appeal Against an Order Under S 121 B of the Environmental Planning and Assessment Act 1979; Notice of Motion for Costs / Costs Motion After Determination of Appeal
Outcome
Council's motion for costs granted in part; indemnity costs refused.
Legal Topics
['class 1 Costs' 'indemnity Costs' 'withdrawal or Discontinuance of Appeal' 'unreasonable Conduct of Proceedings' 'council Order Requiring Cessation of Unauthorised Boarding House Use']
['planning and Environment' 'civil Procedure' 'costs'] ['class 1 Costs' 'indemnity Costs' 'withdrawal or Discontinuance of Appeal' 'unreasonable Conduct of Proceedings' 'council Order Requiring Cessation of Unauthorised Boarding House Use']

Case Brief

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Procedural Posture

Class 1 Appeal Against an Order Under S 121 B of the Environmental Planning and Assessment Act 1979; Notice of Motion for Costs / Costs Motion After Determination of Appeal

Legal Issues

  1. 1 ["Whether it was fair and reasonable to order the applicant to pay the respondent's costs of the appeal in Class 1 proceedings." 'Whether the applicant failed to provide, or unreasonably delayed in providing, information or documents required by law.' 'Whether the applicant acted unreasonably by delaying notification of his wish to withdraw the appeal until the first day of hearing.' 'Whether the appeal lacked reasonable prospects of success.' 'Whether any costs order should be on an indemnity basis.' 'Whether the respondent should receive its costs of the notice of motion for costs.']

Ratio Decidendi

It was fair and reasonable to order Mr Khoury to pay only the Council's costs thrown away in preparing for and attending the hearing after the conciliation conference because, although it was not unreasonable to lodge and prosecute the appeal through conciliation, he acted unreasonably by failing to give prior notice that he wished to withdraw and delaying that notification until the first day of hearing after the Council had prepared for a contested hearing. The Council did not establish that Mr Khoury had failed to file essential documents required by law, and the Court could not determine that his appeal lacked reasonable prospects because he never ran or identified his case. The...

Court Disposition

Council's motion for costs granted in part; indemnity costs refused.

Orders

  • ['Mr Khoury pay the costs of Holroyd City Council in relation to the preparation for and attendance at the hearing of the appeal after 19 August 2013, including the directions hearings on 27 August and 12 September 2013, the preparation of the affidavits of Messrs Ferguson, Stephenson, Guido and McDermott, and of...