Waverley Council v Barukh and Anor [2023] NSWLEC 15

Waverley Council v Barukh and Anor [2023] NSWLEC 15

Ms Blajic was joined through no fault of her own and was a necessary party because works affecting the shared boundary could not be carried out without impacting her property. The Consent Orders substantively achieved relief for Council and remedial works on Ms Blajic's property, giving her some practical success, and reflected a sufficient element of capitulation by Mr Barukh. In the interests of justice, Mr Barukh should pay one half of Ms Blajic's costs incurred up to the entry of the Consent Orders on 26 November 2021. The Court was not satisfied there was sufficient evidence to find Council's conduct unreasonable, but concerns about Council's conduct justified no order as to the...

Jurisdiction
Australia
Judgment Date
28 February 2023
Procedural Posture
Class 4 Civil Enforcement Proceedings; Costs Application / Application by the Second Respondent for Costs After the Proceedings Were Effectively Settled Without a Determination on the Merits
Outcome
Further amended summons dismissed; partial costs order made in favour of the second respondent against the first respondent; no order as to costs of the costs application.
Legal Topics
['costs Discretion' 'costs Following the Event' 'proceedings Resolved Without Hearing on the Merits' 'discontinuance or Constructive Discontinuance' 'capitulation or Surrender' 'necessary Party' 'consent Orders']
['costs' 'planning and Environment' 'civil Enforcement'] ['costs Discretion' 'costs Following the Event' 'proceedings Resolved Without Hearing on the Merits' 'discontinuance or Constructive Discontinuance' 'capitulation or Surrender' 'necessary Party' 'consent Orders']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 4 Civil Enforcement Proceedings; Costs Application / Application by the Second Respondent for Costs After the Proceedings Were Effectively Settled Without a Determination on the Merits

Legal Issues

  1. 1 ['Whether the second respondent should receive her costs where she was joined by the applicant as a necessary party and the substantive proceedings were resolved without a hearing on the merits.' "Whether the first respondent's agreement to the Consent Orders involved sufficient capitulation or practical success for the second respondent to justify a costs order." "Whether the applicant should pay the second respondent's costs because of its conduct in joining her and resolving the proceedings without dealing with her costs." 'What costs order should be made in relation to the costs application itself.']

Ratio Decidendi

Ms Blajic was joined through no fault of her own and was a necessary party because works affecting the shared boundary could not be carried out without impacting her property. The Consent Orders substantively achieved relief for Council and remedial works on Ms Blajic's property, giving her some practical success, and reflected a sufficient element of capitulation by Mr Barukh. In the interests of justice, Mr Barukh should pay one half of Ms Blajic's costs incurred up to the entry of the Consent Orders on 26 November 2021. The Court was not satisfied there was sufficient evidence to find Council's conduct unreasonable, but concerns about Council's conduct justified no order as to the...

Court Disposition

Further amended summons dismissed; partial costs order made in favour of the second respondent against the first respondent; no order as to costs of the costs application.

Orders

  • ['The further amended summons is dismissed.' 'Moshe Chai Barukh, the first respondent, is to pay one half of the costs of Maria Blajic, the second respondent, incurred in these proceedings up until 26 November 2021.' 'There be no order as to costs of this costs application.']