Huajun Investments Pty Ltd v City of Canada Bay Council [2020] NSWLEC 108

Land and Environment Court New South Wales

Medium Neutral Citation: Huajun Investments Pty Ltd v City of Canada Bay Council [2020] NSWLEC 108 Hearing dates: 30 March 2020 Date of orders: 6 August 2020 Decision date: 06 August 2020 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [144] Catchwords: COSTS - application for costs of complete Class 1 merit proceedings - Applicant in merit proceedings unsuccessful on jurisdictional as well as merit grounds - whether failure on jurisdictional grounds provided a basis for concluding that it was fair and reasonable to award costs to the opposing party who successfully pressed the jurisdictional grounds - Applicant on notice as a consequence of Court of Appeal proceedings of two of the jurisdictional grounds said to be bars to approval of the Applicant's proposed development - basis for pursuing the merit appeal unarguable on two foreshadowed jurisdictional grounds - general costs application in Class 1 merit proceedings appropriately brought - fair and reasonable to Second Respondent its costs for the whole proceedings - Applicant to pay Second Respondent's costs of the Class 1 proceedings COSTS - application for costs thrown away by Second Respondent as a consequence of amendments to the proposed development that were not minor - Second Respondent took lead role before the Acting Registrar on the issue of whether the proposed amendments were minor - appropriate that the Second Respondent receive its costs thrown away as a consequence of those amendments COSTS - costs of the costs application - costs ordinarily follow the event for costs applications in Class 1 merit proceedings - appropriate that the costs Applicant be awarded its costs of the costs application Legislation Cited: Canada Bay Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979, s 8.15(3) Land and Environment Court Act 1979, s 74(1)(e) Land and Environment Court Rules 2007, r 3.7 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Uniform Civil Procedure Rules 2005, r 42.1 Cases Cited: Agonic Holdings Pty Ltd v Lithgow City Council [2009] NSWLEC 34 Al Maha Pty Ltd v Huajan Investments Pty Ltd [2018] NSWCA 245 Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103 AT v Commissioner of Police, NSW [2010] NSWCA 131 Community Association DP270253 v Woollahra Municipal Council (2015) 207 LGERA 268; [2015] NSWCA 80 Coolah Holdings Pty Ltd v Eurobodalla Shire Council (No 2) [2012] NSWLEC 84 Dunford v Gosford City Council (No 3) [2015] NSWLEC 96 Grant v Kiama Municipal Council [2006] NSWLEC 70 Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149 Hillsong Church Limited v Council of the City of Sydney (No 2) [2012] NSWLEC 118 Huajun Investments Pty Ltd v City of Canada Bay Council (No 2) [2018] NSWLEC 194 Huajun Investments Pty Ltd v City of Canada Bay Council (No 3) [2019] NSWLEC 42 Hunter v Central Coast Council [2017] NSWLEC 154 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256 Modern Motels Pty Ltd v Fairfield City Council [2013] NSWLEC 138 Moss Vale Projects Pty Ltd v Wingecarribee Shire Council [2018] NSWLEC 180 Owners - Strata Plan No 20226 v North Sydney Council [2012] NSWLEC 148 Pepperwood Ridge Pty Ltd v Newcastle City Council (2008) 160 LGERA 164; [2008] NSWLEC 196 Pet Carriers International Pty Ltd v Botany Bay [City] Council (No 2) [2013] NSWLEC 150 Port Stephens Council v Sansom (2007) 156 LGERA 125; [2007] NSWCA 299 Re Minister for Immigration & Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Category: Costs Parties: Huajun Investments Pty Ltd (Applicant/Respondent on the Motion) City of Canada Bay Council (First Respondent) Al Maha Pty Ltd (Second Respondent/Applicant on the Motion) Representation: Counsel: Mr C McEwen SC (Applicant/Respondent on the Motion) Mr T Robertson SC (Second Respondent/Applicant on the Motion)