Evans and Another v Maclean Shire Council and Another [2004] NSWLEC 89

Evans and Another v Maclean Shire Council and Another [2004] NSWLEC 89

The respondents' conduct before commencement and during the litigation up to 6 November 2003, in treating the proposal as designated development and then reversing that position, led the applicants into the litigation and placed them in an invidious position that justified their opposition to the notices of motion. That conduct disentitled the respondents from the usual costs order. Because the applicants succeeded on the costs applications, each respondent was ordered to pay one half of the applicants' costs of the notices of motion.

Jurisdiction
Australia
Judgment Date
19 March 2004
Procedural Posture
Appeal Under S 98 of the Environmental Planning and Assessment Act 1979 Concerning Development Consent, Followed by Respondents' Costs Notices of Motion / Reserved Judgment on Notices of Motion for Costs After Preliminary Dismissal of the Proceedings
Outcome
Both respondents' notices of motion for costs were dismissed, and the respondents were ordered to pay the applicants' costs of those motions in equal halves.
Legal Topics
['development Consent' 'designated Development' 'objector Appeal' 'jurisdiction' 'costs Discretion' 'disentitling Conduct']
['planning and Environment Law' 'civil Procedure' 'costs'] ['development Consent' 'designated Development' 'objector Appeal' 'jurisdiction' 'costs Discretion' 'disentitling Conduct']

Case Brief

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Procedural Posture

Appeal Under S 98 of the Environmental Planning and Assessment Act 1979 Concerning Development Consent, Followed by Respondents' Costs Notices of Motion / Reserved Judgment on Notices of Motion for Costs After Preliminary Dismissal of the Proceedings

Legal Issues

  1. 1 ['Whether the successful respondents should receive costs of the whole proceedings or of the preliminary notice of motion concerning whether the development application was for designated development.' "Whether the respondents' conduct before and during the litigation up to 6 November 2003 disentitled them from the usual order that costs follow the event." "Whether the applicants, having opposed the respondents' costs motions, were entitled to costs of those notices of motion."]

Ratio Decidendi

The respondents' conduct before commencement and during the litigation up to 6 November 2003, in treating the proposal as designated development and then reversing that position, led the applicants into the litigation and placed them in an invidious position that justified their opposition to the notices of motion. That conduct disentitled the respondents from the usual costs order. Because the applicants succeeded on the costs applications, each respondent was ordered to pay one half of the applicants' costs of the notices of motion.

Court Disposition

Both respondents' notices of motion for costs were dismissed, and the respondents were ordered to pay the applicants' costs of those motions in equal halves.

Orders

  • ['Notice of motion dated 24 December 2003 by the second respondent is dismissed.' 'Notice of motion dated 15 January 2004 by the first respondent is dismissed.' "The first respondent is ordered to pay one half of the applicants' costs in respect of the notices of motion, 24 December 2003 and 15 January 2004." "The...