Brindley v Parramatta City Council [2015] NSWLEC 1160

Brindley v Parramatta City Council [2015] NSWLEC 1160

It was not fair and reasonable to order the respondent to pay the applicant's costs of the section 34 conciliation conference because there was no evidence that the respondent failed to participate in good faith and the conference had utility, producing amendments to the modification application and plan of management. However, from 14 August 2014 the respondent unreasonably maintained refusal contentions about amenity, social impact and parking without probative evidence or reason, thereby putting the applicant to the unnecessary cost of preparing for and conducting a contested hearing. The applicant was therefore entitled to costs of the proceedings from that date. The applicant was not...

Jurisdiction
Australia
Judgment Date
19 May 2015
Procedural Posture
Class 1 Costs Application in Land and Environment Court Proceedings Concerning a Modification Application / Decision on the Applicant's Notice of Motion for Costs After the Modification Application Appeal Was Granted
Outcome
Application for costs allowed in part.
Legal Topics
['costs in Class 1 Merit Appeals' 'section 34 Conciliation Conference Costs' 'unreasonable Conduct of Proceedings' 'consent Authority Maintaining Contentions Without Probative Evidence' 'calderbank Offer and Indemnity Costs']
['planning and Environment' 'civil Procedure' 'costs'] ['costs in Class 1 Merit Appeals' 'section 34 Conciliation Conference Costs' 'unreasonable Conduct of Proceedings' 'consent Authority Maintaining Contentions Without Probative Evidence' 'calderbank Offer and Indemnity Costs']

Case Brief

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Procedural Posture

Class 1 Costs Application in Land and Environment Court Proceedings Concerning a Modification Application / Decision on the Applicant's Notice of Motion for Costs After the Modification Application Appeal Was Granted

Legal Issues

  1. 1 ["Whether it was fair and reasonable under r 3.7 of the Land and Environment Court Rules 2007 to order the respondent to pay the applicant's costs of the proceedings." 'Whether the respondent acted unreasonably or failed to participate in good faith in the section 34 conciliation conference process so as to justify an order for the costs of that process.' 'Whether the respondent unreasonably continued to contest the modification application on contentions not supported by probative evidence or reason.' 'Whether the applicant should receive costs, including indemnity costs, of the notice of motion filed 12 September 2014.']

Ratio Decidendi

It was not fair and reasonable to order the respondent to pay the applicant's costs of the section 34 conciliation conference because there was no evidence that the respondent failed to participate in good faith and the conference had utility, producing amendments to the modification application and plan of management. However, from 14 August 2014 the respondent unreasonably maintained refusal contentions about amenity, social impact and parking without probative evidence or reason, thereby putting the applicant to the unnecessary cost of preparing for and conducting a contested hearing. The applicant was therefore entitled to costs of the proceedings from that date. The applicant was not...

Court Disposition

Application for costs allowed in part.

Orders

  • ["The respondent pay the applicant's costs of the proceedings from 14 August 2014, as agreed or assessed." "The respondent pay 50% of the applicant's costs of the notice of motion filed 12 September 2014, as agreed or assessed." 'Exhibits 2, 3 and 5 be returned.']