Gillespie v Wolseley Investments Pty Limited and Woollahra Municipal Council [2011] NSWLEC 24

Gillespie v Wolseley Investments Pty Limited and Woollahra Municipal Council [2011] NSWLEC 24

The applicant discontinued the proceedings due to the modification of the fire safety order, but the initiation of the proceedings was precipitate, as the company was already pursuing modification and had involved the Council. There was no evidence that the applicant's actions prompted the resolution, nor grounds to depart from the usual rule that the discontinuing applicant pays the costs of the respondents.

Parties
Applicant: Patricia Gillespie; First Respondent: Wolseley Investments Pty Limited; Second Respondent: Woollahra Municipal Council
Jurisdiction
Australia
Judgment Date
28 February 2011
Procedural Posture
Class 4 Proceedings / Final Orders on Discontinuance and Costs
Outcome
Proceedings discontinued. Applicant to pay respondents' costs as specified.
Legal Topics
Costs on Discontinuance, Fire Safety Orders, Council Enforcement Powers, Modification of Orders
Civil Procedure Planning and Environment Law Costs on Discontinuance Fire Safety Orders Council Enforcement Powers Modification of Orders

Case Brief

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Parties

Patricia Gillespie

Applicant

Wolseley Investments Pty Limited

First Respondent

Woollahra Municipal Council

Second Respondent

Procedural Posture

Class 4 Proceedings / Final Orders on Discontinuance and Costs

Legal Issues

  1. 1 Who should bear the costs of proceedings discontinued by the applicant after a supervening event?
  2. 2 Whether the conduct of parties justified a costs order departing from the usual rule
  3. 3 Whether the proceedings were reasonable or precipitate

Ratio Decidendi

The applicant discontinued the proceedings due to the modification of the fire safety order, but the initiation of the proceedings was precipitate, as the company was already pursuing modification and had involved the Council. There was no evidence that the applicant's actions prompted the resolution, nor grounds to depart from the usual rule that the discontinuing applicant pays the costs of the respondents.

Court Disposition

Proceedings discontinued. Applicant to pay respondents' costs as specified.

Orders

  • Leave is granted to the applicant to discontinue the proceedings.
  • The applicant is ordered to pay the first respondent's costs of the proceedings to date on a party-party basis, as agreed, or as assessed according to law, including the costs incurred by the first respondent on the applicant's NOM, and in respect of the hearings on 2, 9, 15 and 28 July 2010.