Waverley Council v Bobolas (No 4) [2019] NSWLEC 25

Waverley Council v Bobolas (No 4) [2019] NSWLEC 25

The omission of the words "as agreed or assessed" could be corrected under the slip rule, although the costs order already had essentially the same effect. No basis was shown under rr 36.15 or 36.16, or otherwise, to limit the costs to a junior barrister, exclude the costs of Mr Schilt's affidavit, or substitute an order that each party pay its own costs. The Second and Third Respondents were largely unsuccessful on their motion, so they were ordered to pay the Council's costs of the motion from the commencement of the hearing.

Jurisdiction
Australia
Judgment Date
08 March 2019
Procedural Posture
Class 4 Proceedings / Ex Tempore Judgment on the Second and Third Respondents' Notice of Motion Dated 2 January 2019 Seeking Variation of a Costs Order Made on 19 December 2018
Outcome
The costs order was varied only to insert "as agreed or assessed"; the other variations sought by the Second and Third Respondents were refused, and they were ordered to pay the Council's costs of the motion from 12.15 pm on 8 March 2019 as agreed or assessed.
Legal Topics
['slip Rule' 'variation of Judgments and Orders' 'setting Aside Judgments and Orders' 'costs Orders']
['practice and Procedure' 'costs'] ['slip Rule' 'variation of Judgments and Orders' 'setting Aside Judgments and Orders' 'costs Orders']

Case Brief

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Procedural Posture

Class 4 Proceedings / Ex Tempore Judgment on the Second and Third Respondents' Notice of Motion Dated 2 January 2019 Seeking Variation of a Costs Order Made on 19 December 2018

Legal Issues

  1. 1 ['Whether the costs order made on 19 December 2018 should be varied to add the words "as agreed or assessed".' 'Whether the costs order should be varied to limit recoverable costs to the costs of a junior barrister only.' "Whether costs for the preparation of Mr Schilt's affidavit should be excluded from the costs order." 'Whether the costs order should be set aside and replaced with an order that each party pay its own costs.' 'Whether any variation was available under Uniform Civil Procedure Rules 2005 rr 36.15, 36.16 or 36.17 after final orders had been made and entered.']

Ratio Decidendi

The omission of the words "as agreed or assessed" could be corrected under the slip rule, although the costs order already had essentially the same effect. No basis was shown under rr 36.15 or 36.16, or otherwise, to limit the costs to a junior barrister, exclude the costs of Mr Schilt's affidavit, or substitute an order that each party pay its own costs. The Second and Third Respondents were largely unsuccessful on their motion, so they were ordered to pay the Council's costs of the motion from the commencement of the hearing.

Court Disposition

The costs order was varied only to insert "as agreed or assessed"; the other variations sought by the Second and Third Respondents were refused, and they were ordered to pay the Council's costs of the motion from 12.15 pm on 8 March 2019 as agreed or assessed.

Orders

  • ['Order 2 made on 19 December 2018 to be varied by the insertion of "as agreed or assessed" to read "The Second and Third Respondents are to pay the Council\'s costs of the notice of motion dated 11 December 2018 as agreed or assessed".' "The Council's costs incurred from the commencement of the hearing of the...