Oberon Shire Council v Kiangatha Holdings Pty Ltd [2021] NSWLEC 30

Oberon Shire Council v Kiangatha Holdings Pty Ltd [2021] NSWLEC 30

The proceedings were not compromised or settled within the meaning of s 73 Civil Procedure Act as not all issues (particularly costs) were agreed. The Council's application to amend was causally linked to the Company's undertaking to the Court to complete remediation works by a specified date, amounting to capitulation by the Company. Costs should follow the event, and a gross sum costs order is appropriate given the circumstances.

Parties
Applicant: Oberon Shire Council; Respondent: Kiangatha Holdings Pty Ltd
Jurisdiction
Australia
Judgment Date
14 April 2021
Procedural Posture
Class 4 Civil Enforcement Proceedings / Discontinuance After Interlocutory Applications and Orders as to Costs
Outcome
Company's Notice of Motion dismissed; Council granted leave to amend; undertaking by Company noted; proceedings discontinued; Respondent ordered to pay Applicant's costs in gross sum.
Legal Topics
Development Consent, Remediation Orders, Settlement of Proceedings, Costs Following Discontinuance, Undertakings to Court
Environmental Law Civil Procedure Development Consent Remediation Orders Settlement of Proceedings Costs Following Discontinuance Undertakings to Court

Case Brief

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Parties

Oberon Shire Council

Applicant

Kiangatha Holdings Pty Ltd

Respondent

Procedural Posture

Class 4 Civil Enforcement Proceedings / Discontinuance After Interlocutory Applications and Orders as to Costs

Legal Issues

  1. 1 Whether the proceedings were compromised or settled to enable s 73 Civil Procedure Act 2005 to be used
  2. 2 Whether leave should be granted to amend Summons and Points of Claim
  3. 3 Whether costs should follow the event or other order given the discontinuance

Ratio Decidendi

The proceedings were not compromised or settled within the meaning of s 73 Civil Procedure Act as not all issues (particularly costs) were agreed. The Council's application to amend was causally linked to the Company's undertaking to the Court to complete remediation works by a specified date, amounting to capitulation by the Company. Costs should follow the event, and a gross sum costs order is appropriate given the circumstances.

Court Disposition

Company's Notice of Motion dismissed; Council granted leave to amend; undertaking by Company noted; proceedings discontinued; Respondent ordered to pay Applicant's costs in gross sum.

Orders

  • Respondent's Notice of Motion of 30 November 2020 is dismissed.
  • Applicant is granted leave to rely on the Amended Summons and Amended Points of Claim annexed to the Applicant's Notice of Motion filed on 3 September 2020.