Nadilo v Eagleton [2021] NSWLEC 9

Nadilo v Eagleton [2021] NSWLEC 9

The Applicant was not entitled to a costs order in her favour because, although the Respondents' works and the expert evidence established non-compliance with SEPP acoustic requirements for the air-conditioning units and the heat-pump water heater issue could be treated as capitulation on SEPP matters, the Applicant did not demonstrate capitulation or inevitable success on all issues. In particular, the acoustic experts disagreed about whether the air-conditioning units were audible in a habitable room of the Applicant's dwelling, which was necessary to the POEO Act and Noise Control Regulation relief. Resolving that dispute would require an impermissible hypothetical merits assessment,...

Jurisdiction
Australia
Judgment Date
11 February 2021
Procedural Posture
Class 4 Civil Enforcement Proceedings; Costs Application After Substantive Proceedings Dismissed by Consent / Costs Hearing After Consent Dismissal of Class 4 Proceedings With Costs Reserved
Outcome
Applicant's costs application refused; no order for costs of the substantive proceedings; Applicant to pay Respondents' costs of the costs motion.
Legal Topics
['costs After Dismissal of Proceedings' 'noise From Residential Air Conditioning Units and Heat Pump Water Heater' 'exempt Development Acoustic Standards' 'protection of the Environment Operations Noise Regulation' 'calderbank Offer and Indemnity Costs']
['environmental Law' 'planning Law' 'civil Procedure'] ['costs After Dismissal of Proceedings' 'noise From Residential Air Conditioning Units and Heat Pump Water Heater' 'exempt Development Acoustic Standards' 'protection of the Environment Operations Noise Regulation' 'calderbank Offer and Indemnity Costs']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings; Costs Application After Substantive Proceedings Dismissed by Consent / Costs Hearing After Consent Dismissal of Class 4 Proceedings With Costs Reserved

Legal Issues

  1. 1 ["Whether the Court should exercise its discretion under r 42.20(1) of the Uniform Civil Procedure Rules 2005 to order the Respondents to pay the Applicant's costs despite dismissal of the proceedings." 'Whether the practical outcome achieved amounted to effective surrender or capitulation by the Respondents on all matters in contention.' 'Whether the Applicant was almost certain to have succeeded if the matter had been fully tried, without the Court undertaking an impermissible hypothetical trial.' 'Whether the Applicant had established a basis for indemnity costs by reference to the 28 August 2020 Calderbank offer.' 'What order should be made for the costs of the costs motion.']

Ratio Decidendi

The Applicant was not entitled to a costs order in her favour because, although the Respondents' works and the expert evidence established non-compliance with SEPP acoustic requirements for the air-conditioning units and the heat-pump water heater issue could be treated as capitulation on SEPP matters, the Applicant did not demonstrate capitulation or inevitable success on all issues. In particular, the acoustic experts disagreed about whether the air-conditioning units were audible in a habitable room of the Applicant's dwelling, which was necessary to the POEO Act and Noise Control Regulation relief. Resolving that dispute would require an impermissible hypothetical merits assessment,...

Court Disposition

Applicant's costs application refused; no order for costs of the substantive proceedings; Applicant to pay Respondents' costs of the costs motion.

Orders

  • ["The application that discretion be exercised pursuant to r 42.20(1) of the Uniform Civil Procedure Rules 2005 (the UCPR) to order that the Respondents pay the Applicant's costs of the proceedings is refused." 'Pursuant to r 42.20(1) of the UCPR, there is to be no order for costs of the proceedings, with the...