Symchung Pty Limited v. Concord Council [1998] NSWLEC 111

Symchung Pty Limited v. Concord Council [1998] NSWLEC 111

The Council's belated and substantial change of case, raised only about a fortnight before the hearing and amounting to a volte-face from the issues previously identified, made the Applicant's discontinuance a reasonable response and disqualified the Council from any presumptive entitlement to costs; however, the circumstances were not sufficiently exceptional to justify ordering costs in favour of the discontinuing Applicant.

Jurisdiction
Australia
Judgment Date
29 May 1998
Procedural Posture
Class 1 Development Appeal Proceedings / Rival Motions for Costs After the Applicant Discontinued the Proceedings Shortly Before the Fixed Hearing Dates
Outcome
Both motions for costs were dismissed and no order for costs was made.
Legal Topics
['development Consent Conditions' 'discontinuance of Proceedings' 'costs in Class 1 and 2 Proceedings' 'council Change of Position Before Hearing']
['planning and Environmental Law' 'civil Procedure'] ['development Consent Conditions' 'discontinuance of Proceedings' 'costs in Class 1 and 2 Proceedings' 'council Change of Position Before Hearing']

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Procedural Posture

Class 1 Development Appeal Proceedings / Rival Motions for Costs After the Applicant Discontinued the Proceedings Shortly Before the Fixed Hearing Dates

Legal Issues

  1. 1 ['Whether the Respondent Council should receive costs after the Applicant discontinued Class 1 proceedings shortly before the hearing.' 'Whether the Applicant should receive costs despite being the party that discontinued the proceedings.' "Whether the Council's belated raising of a substantially new case displaced any presumptive entitlement to costs arising from discontinuance."]

Ratio Decidendi

The Council's belated and substantial change of case, raised only about a fortnight before the hearing and amounting to a volte-face from the issues previously identified, made the Applicant's discontinuance a reasonable response and disqualified the Council from any presumptive entitlement to costs; however, the circumstances were not sufficiently exceptional to justify ordering costs in favour of the discontinuing Applicant.

Court Disposition

Both motions for costs were dismissed and no order for costs was made.

Orders

  • ["The Council's motion for costs is dismissed." "The Applicant's motion for costs is dismissed." 'No order for costs in the proceedings.']