Waverley Council v Ash Samadi and Ors (No 2) [2020] NSWLEC 162

Land and Environment Court New South Wales

Medium Neutral Citation: Waverley Council v Ash Samadi and Ors (No 2) [2020] NSWLEC 162 Hearing dates: 13 November 2020 Date of orders: 25 November 2020 Decision date: 25 November 2020 Jurisdiction: Class 4 Before: Duggan J Decision: See paragraphs 20 and 21 Catchwords: COSTS – indemnity costs basis – sufficiently delinquent conduct – appropriate to fix quantum by percentage and to specific conduct Cases Cited: Oshlack v Richmond River Council (1998) 193 CLR 72 Waverley Council v Ash Samadi and Ors [2020] NSWLEC 67 Category: Costs Parties: Waverley Council (Applicant) Ash Samadi (First Respondent) Vladan Blagojevic (Second Respondent) VB Certifier (Third Respondent) Representation: Counsel: Mr D Miller SC and Mr D Birch (Applicant) Mr M Astill (First Respondent) Submitting Appearances (Second and Third Respondents)

Solicitors: Maddocks Lawyers (Applicant) Storey & Gough Lawyers (First Respondent) Submitting Appearances (Second and Third Respondents) File Number(s): 2020/69186 Publication restriction: No

Judgment 1. This is an application relating to the costs of the proceedings in Waverley Council v Ash Samadi and Ors [2020] NSWLEC 67 (Samadi (No 1)). I adopt the facts and circumstances as set out in that judgment without repeating them here. I adopt the same defined terms as were used in Samadi (No 1). 2. The Council seeks the following orders against the First Respondent: 1. The Respondent is to pay 40% of the Applicant's costs of the proceedings on an indemnity basis; and 2. The Respondent is to pay 60% of the Applicant's costs of the proceedings (as assessed or agreed) on the ordinary basis. 1. Whilst the orders sought refer to "the Respondent", I understand the Council to only be seeking an order for costs against the First Respondent and not against the Second or Third Respondents. 2. The First Respondent does not oppose an order that he pay the Council's costs of the proceedings on the ordinary basis. He does oppose the making of an order for indemnity costs as sought by the Council at all, or in the alternative, submits that the proportion of an indemnity order, if made, should be for specified parts of the proceedings but not on a percentage basis, or if on a percentage basis, should be no more than ten percent of the costs of the proceedings.