Papadatos v Randwick City Council [2000] NSWLEC 55

Papadatos v Randwick City Council [2000] NSWLEC 55

Although the current appeal may be hopeless, the evidence did not show undue delay or failure by the applicant to prosecute the appeal; the meetings with the council were designed to try to reach a resolution. The principles governing strike out for want of prosecution therefore did not warrant striking out the appeal at this stage. In Class 1 proceedings there was no sufficient reason to depart from the usual rule that no costs order be made.

Jurisdiction
Australia
Judgment Date
29 February 2000
Procedural Posture
Class 1 Proceedings; Appeal From Refusal of a Development Application Relating to a Dual Occupancy / Respondent's Notice of Motion to Strike Out the Appeal for Want of Prosecution and for Costs
Outcome
Respondent's notice of motion to strike out the appeal was dismissed; the appeal was to continue; no order as to costs of the notice of motion.
Legal Topics
['development Application Appeal' 'strike Out for Want of Prosecution' 'class 1 Proceedings Costs' 'fresh Development Application' 'adjournment and Delay']
['planning and Environment Law' 'civil Procedure'] ['development Application Appeal' 'strike Out for Want of Prosecution' 'class 1 Proceedings Costs' 'fresh Development Application' 'adjournment and Delay']

Case Brief

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Procedural Posture

Class 1 Proceedings; Appeal From Refusal of a Development Application Relating to a Dual Occupancy / Respondent's Notice of Motion to Strike Out the Appeal for Want of Prosecution and for Costs

Legal Issues

  1. 1 ['Whether the appeal should be struck out for want of prosecution under Pt 12 r 2 of the Land and Environment Court Rules 1996.' 'Whether either party should receive costs of the notice of motion in Class 1 proceedings.']

Ratio Decidendi

Although the current appeal may be hopeless, the evidence did not show undue delay or failure by the applicant to prosecute the appeal; the meetings with the council were designed to try to reach a resolution. The principles governing strike out for want of prosecution therefore did not warrant striking out the appeal at this stage. In Class 1 proceedings there was no sufficient reason to depart from the usual rule that no costs order be made.

Court Disposition

Respondent's notice of motion to strike out the appeal was dismissed; the appeal was to continue; no order as to costs of the notice of motion.

Orders

  • ['There be no order in respect to the notice of motion.' 'Each party bear its own costs of the notice of motion.' "The matter be listed in a Registrar's call-over on 7 April."]