Sky Design and Concepts Pty Ltd v Pittwater Council [2009] NSWLEC 1212

Sky Design and Concepts Pty Ltd v Pittwater Council [2009] NSWLEC 1212

Security for costs was ordered because the applicant was a corporation, there was no evidence that it could meet an adverse costs order, the respondent had a reasonable concern about recoverability, the delay in bringing the application resulted from the applicant's conduct concerning production of documents, and the applicant's motion to set aside earlier decisions was outside the usual Class 1 procedure and did not warrant protection as an ordinary bona fide planning appeal. It was fair and reasonable to award the respondent fixed costs because the motion and earlier appearances arose from the applicant's failure to cooperate and the security motion was discrete from the substantive...

Jurisdiction
Australia
Judgment Date
25 February 2009
Procedural Posture
Costs Section 97 Appeal; Security for Costs / Respondent's Notice of Motion for Security for Costs
Outcome
Respondent's notice of motion granted; security for costs and fixed costs ordered; hearing dates vacated and motions relisted.
Legal Topics
['security for Costs' 'class 1 Proceedings' 'section 56 a Appeal' 'notice of Motion' "corporate Applicant's Capacity to Pay Costs"]
['planning and Environment' 'civil Procedure' 'costs'] ['security for Costs' 'class 1 Proceedings' 'section 56 a Appeal' 'notice of Motion' "corporate Applicant's Capacity to Pay Costs"]

Case Brief

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Procedural Posture

Costs Section 97 Appeal; Security for Costs / Respondent's Notice of Motion for Security for Costs

Legal Issues

  1. 1 ["Whether the applicant corporation should provide security for the respondent's costs of defending the applicant's notice of motion filed on 19 December 2008." 'Whether the respondent delayed in bringing the security for costs application.' 'Whether requiring security would unfairly deny the applicant procedural fairness or access to justice.' 'Whether the respondent should receive fixed costs of the motion and related appearances.']

Ratio Decidendi

Security for costs was ordered because the applicant was a corporation, there was no evidence that it could meet an adverse costs order, the respondent had a reasonable concern about recoverability, the delay in bringing the application resulted from the applicant's conduct concerning production of documents, and the applicant's motion to set aside earlier decisions was outside the usual Class 1 procedure and did not warrant protection as an ordinary bona fide planning appeal. It was fair and reasonable to award the respondent fixed costs because the motion and earlier appearances arose from the applicant's failure to cooperate and the security motion was discrete from the substantive...

Court Disposition

Respondent's notice of motion granted; security for costs and fixed costs ordered; hearing dates vacated and motions relisted.

Orders

  • ['The applicant provide by 9 April 2009 security for costs of the respondent in the sum of $15,175 by way of unconditional bank guarantee in a form acceptable to the Registrar.' "The applicant pay the respondent's costs of this motion in the sum of $2,500 by 9 April 2009, including the costs of 18 February and 12...