Vigor Master Pty Limited v Warringah Council (No 2 ) [2005] NSWLEC 255

Vigor Master Pty Limited v Warringah Council (No 2 ) [2005] NSWLEC 255

It was fair and reasonable to order partial costs because, although failure to withdraw after the Court-appointed expert's oral report was not by itself sufficient, the applicant had prior experience with the same planning controls, should have appreciated the effect of the housing density provisions and the strong independent opinion of the Court-appointed expert, and unreasonably pursued the housing density issue, took the matter to trial, prolonged the hearing, reopened the case, and brought a notice of motion that increased the council's costs without procedural benefit.

Jurisdiction
Australia
Judgment Date
19 May 2005
Procedural Posture
Costs Application in Development Appeal Proceedings / Post Judgment Costs Application; Provisional Costs Orders Subject to Concurrence of the Chief Judge
Outcome
Provisional costs orders to be sought from the Chief Judge; applicant to pay part of the council's costs if concurrence is given.
Legal Topics
['costs' 'development Consent Appeal' 'housing Density Standard' 'court Appointed Expert' 'warringah Local Environmental Plan 2000']
['environmental Planning Law' 'civil Procedure'] ['costs' 'development Consent Appeal' 'housing Density Standard' 'court Appointed Expert' 'warringah Local Environmental Plan 2000']

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Procedural Posture

Costs Application in Development Appeal Proceedings / Post Judgment Costs Application; Provisional Costs Orders Subject to Concurrence of the Chief Judge

Legal Issues

  1. 1 ["Whether it was fair and reasonable under s 69(2) of the Land and Environment Court Act 1979 and Part 16 Rule 4 of the Court's rules to order the applicant to pay the council's costs from 14 January 2005." "Whether the applicant unreasonably pursued and prolonged the housing density issue after receiving the Court-appointed planning expert's oral report." "Whether the council should recover costs associated with the applicant's notice of motion filed 19 January 2005, the reopening of the hearing, part of the Court-appointed expert's fees, and the costs motion."]

Ratio Decidendi

It was fair and reasonable to order partial costs because, although failure to withdraw after the Court-appointed expert's oral report was not by itself sufficient, the applicant had prior experience with the same planning controls, should have appreciated the effect of the housing density provisions and the strong independent opinion of the Court-appointed expert, and unreasonably pursued the housing density issue, took the matter to trial, prolonged the hearing, reopened the case, and brought a notice of motion that increased the council's costs without procedural benefit.

Court Disposition

Provisional costs orders to be sought from the Chief Judge; applicant to pay part of the council's costs if concurrence is given.

Orders

  • ["The Commissioner proposed to seek the concurrence of the Chief Judge under s 69(8) of the Land and Environment Court Act 1979 to an order that the applicant pay the council's costs in the amount of $14,935." '$6,000 with respect to the housing density issue (Issues 1, 2 and 3) accrued from 14 January 2005 to 11...