Mouawad v The Hills Shire Council (No 2); Mouawad v The Hills Shire Council (No 2) [2013] NSWLEC 172

Land and Environment Court New South Wales

Medium Neutral Citation: Mouawad v The Hills Shire Council (No 2); Mouawad v The Hills Shire Council (No 2) [2013] NSWLEC 172 Hearing dates: 10 October 2013 Decision date: 10 October 2013 Jurisdiction: Class 6 Before: Pepper J Decision: See orders at [9]. Catchwords: COSTS: appeal from local court - whether costs orders must stipulate time within which to pay - whether court to exercise its discretion and allow appellants further time to pay costs. Legislation Cited: Crimes (Appeal and Review) Act 2001, s 72(b) Cases Cited: Mouawad v The Hills Shire Council; Mouawad v The Hills Shire Council [2013] NSWLEC 165 Category: Costs Parties: Paul Mouawad (First Appellant) Ninoska Mouawad (Second Appellant) The Hills Shire Council (Respondent) Representation: Ms J Walker (Appellants) Mr M Wright (Respondent) N/A (Appellants) The Hills Shire Council (Respondent) File Number(s): 60290 and 60291 of 2011

EX TEMPORE JUDGMENT

The Council Seeks an Amendment to Orders that the Appellants Pay the Council's Costs 1In Mouawad v The Hills Shire Council; Mouawad v The Hills Shire Council [2013] NSWLEC 165, I dismissed the appellants' appeals and ordered each appellant to pay the prosecutor's costs as agreed or assessed (at [203]). 2However, no time within which the costs were to be paid was stipulated as required by s 72(b) of the Crimes (Appeal and Review) Act 2001. 3Section 72 of that Act states as follows: 72 Orders for costs An appeal court that orders an appellant or respondent to pay costs: (a) (Repealed) (b) must state a time within which the costs or other amount must be paid. 4There is an inherent difficulty in s 72 of the Act insofar as it stipulates a time for payment in circumstances where, unless the costs are agreed, they have to be assessed. Nevertheless, compliance can be effected with that provision by stating a time relative to any agreement made or the issue of a certificate of assessment. 5In respect of each appeal the respondent, The Hills Shire Council ("the council"), therefore seeks an amendment to the costs orders in the following terms: The appellant is to pay the prosecutor's costs as agreed or assessed with such costs to be paid within 28 days after an agreement as to the amount of costs has been made or the issue of a certificate of assessment of any such costs, whichever is the earlier. 6The council initially requested that the amendment be made in chambers, however, the Court thought it prudent to list the application for hearing because the appellants, Mr Paul Mouawad and Mrs Ninoska Mouawad, appeared to no longer have the benefit of legal representation (a notice of ceasing to act has been filed by their solicitor). The Appellants Must Pay the Costs Within Twenty Eight Days 7Before the Court today, Mr and Mrs Mouawad were represented by Ms Walker of counsel. While there was no contest as to the wording of the proposed amendment to the costs orders, Ms Walker submitted that because Mr and Mrs Mouawad were private individuals, additional time to pay the costs should be permitted. But other than citing the convenience that the extra time would afford the appellants, no evidence was put before the Court indicating that Mr and Mrs Mouawad were of limited financial means or that the imposition of a costs order in the form proposed above would cause undue hardship on them. 8Although the Crimes (Appeal and Review) Act mandates the imposition of a time within which the costs must be paid, the Act is silent as to what that time period must be. Thus, it is entirely at the discretion of the Court. In the absence of any material, or indeed any reason, justifying a departure from the time period suggested by the council for the payment of the costs, I have declined to afford the appellants any additional time within which to pay beyond the 28 days specified in the proposed order. Orders 9The orders of the Court are therefore as follows: No 60290 of 2011 (1)order (2) in Mouawad v The Hills Shire Council; Mouawad v The Hills Shire Council [2013] NSWLEC 165 is amended as follows: the appellant is to pay the prosecutor's costs as agreed or assessed with such costs to be paid within 28 days after an agreement as to the amount of costs has been made or the issue of a certificate of assessment of any such costs, whichever is the earlier. No 60291 of 2011 (1)order (2) in Mouawad v The Hills Shire Council; Mouawad v The Hills Shire Council [2013] NSWLEC 165 is amended as follows: the appellant is to pay the prosecutor's costs as agreed or assessed with such costs to be paid within 28 days after an agreement as to the amount of costs has been made or the issue of a certificate of assessment of any such costs, whichever is the earlier.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2013