Zikmann v Randwick Council [2004] NSWLEC 445

Zikmann v Randwick Council [2004] NSWLEC 445

The council's refusal of the modification application was so lacking in merit that, in the circumstances, it was fair and reasonable to make a costs order. The Court was not taken to any planning document provision remotely offended by the modification application, and the circumstances were distinguishable from CSA Architects because there was no material supporting a genuine contest. Costs were to be limited to those recoverable by a litigant in person who is a legal practitioner under Cachia v Hanes.

Jurisdiction
Australia
Judgment Date
28 September 2004
Procedural Posture
Development Application Class 1 Appeal; Application for Costs / Costs Application After Appeal Upheld at S 34 Conference
Outcome
The Commissioner was of the opinion that Randwick City Council should pay the applicant's costs, agreed or assessed, limited to costs recoverable by a litigant in person who is a legal practitioner; parties were directed to advise whether they wished to make submissions to the Chief Judge.
Legal Topics
['development Consent Modification' 'class 1 Appeal' 'costs in Land and Environment Court Proceedings' 'litigant in Person Legal Practitioner Costs']
['planning and Environment' 'costs'] ['development Consent Modification' 'class 1 Appeal' 'costs in Land and Environment Court Proceedings' 'litigant in Person Legal Practitioner Costs']

Case Brief

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Procedural Posture

Development Application Class 1 Appeal; Application for Costs / Costs Application After Appeal Upheld at S 34 Conference

Legal Issues

  1. 1 ['Whether it was fair and reasonable under Pt 16 of the Land and Environment Court Rules to make a costs order against the council.' "Whether the council's refusal of the modification application was so lacking in merit as to justify a costs order." 'Whether and how costs claimed by a self-represented barrister could be recovered.']

Ratio Decidendi

The council's refusal of the modification application was so lacking in merit that, in the circumstances, it was fair and reasonable to make a costs order. The Court was not taken to any planning document provision remotely offended by the modification application, and the circumstances were distinguishable from CSA Architects because there was no material supporting a genuine contest. Costs were to be limited to those recoverable by a litigant in person who is a legal practitioner under Cachia v Hanes.

Court Disposition

The Commissioner was of the opinion that Randwick City Council should pay the applicant's costs, agreed or assessed, limited to costs recoverable by a litigant in person who is a legal practitioner; parties were directed to advise whether they wished to make submissions to the Chief Judge.

Orders

  • ["The council should pay the applicant's costs in the sum agreed or, failing agreement, as assessed." 'Such costs are limited to those costs of a litigant in person who is a legal practitioner and in accordance with principles established in Cachia v Hanes (1994) 179 CLR 403.' 'In accordance with cl 10 of the Land...