Xia v Hornsby Shire Council [2020] NSWLEC 73

Land and Environment Court New South Wales

Medium Neutral Citation: Xia v Hornsby Shire Council [2020] NSWLEC 73 Hearing dates: 16 June 2020 Date of orders: 16 June 2020 Decision date: 16 June 2020 Jurisdiction: Class 1 Before: Moore J Decision: See [22] Catchwords: COSTS - Applicant discontinues Class 1 merit appeal - Council refuses to consent to discontinuance unless Applicant pays Council's costs - Registrar permits discontinuance - Council files Notice of Motion seeking costs - Council's submissions based on r 42.19 of the Uniform Civil Procedure Rules 2005 (the UCPR) – Sch 1 of the UCPR expressly provides that r 42.19 does not apply in Class 1 merit appeals - Council abandons submission and relies on r 3.7 of the Land and Environment Court Rules 2007 - Class 1 process entirely conventional - no conduct by Applicant warranting a costs order in favour of the Council - Council's motion dismissed COSTS - costs of costs applications conventionally follow the event - open offer from Applicant that Council's motion be withdrawn with no order for costs - offer not accepted - appropriate that Applicant's costs be on ordinary basis until the date of the offer and on the indemnity basis from the date of the offer Legislation Cited: Environmental Planning and Assessment Act 1979, s 96 Land and Environment Court Rules 2007, r 3.7 Uniform Civil Procedure Rules 2005, r 42.19 and Sch 1 Cases Cited: Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Ross v Lane Cove Council (2013) NSWLEC 109 Category: Costs Parties: Hongfei (Nick) Xia (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: Mr D Briggs, solicitor (Applicant) Ms J Ayas, solicitor (Respondent)