Nadilo v Eagleton [2021] NSWLEC 9

Land and Environment Court New South Wales

Medium Neutral Citation: Nadilo v Eagleton [2021] NSWLEC 9 Hearing dates: 29 January 2021 Date of orders: 11 February 2021 Decision date: 11 February 2021 Jurisdiction: Class 4 Before: Moore J Decision: See orders at [118] Catchwords: CIVIL ENFORCEMENT - Applicant commences proceedings against neighbours in Local Court seeking noise abatement order pursuant to the Protection of the Environment Operations Act 1997 - COVID‑19 pandemic intervenes - likely finalisation time in the Local Court extends significantly - Applicant commences Class 4 proceedings concerning acoustic impact of hot water heater and two air‑conditioning units on neighbours' residential property - expert acoustic evidence filed and served by the Applicant - application for interim injunctive relief - limited interim injunctive relief granted with no order for costs - application seeking stay of Local Court proceedings dismissed by consent with no order for costs - Respondents nominate acoustic expert who is unqualified - Respondents granted leave to replace unqualified acoustic expert with a qualified expert - hot water heater replaced with acoustic compliant one - joint expert acoustic report reveals agreement that the air-conditioning units breach acoustic standards for exempt development - ameliorative acoustic works achieve compliance certification - Class 4 proceedings discontinued with costs reserved COSTS - presumption in Uniform Civil Procedure Rules 2005 that plaintiff in discontinued proceedings will pay respondent's costs of those proceedings unless otherwise ordered - Applicant seeks order for costs of Class 4 proceedings - application based on the proposition that the practical outcome obtained by the Applicant amounted to capitulation by Respondents - joint expert acoustic report reveals disagreement as to whether the air-conditioning units are audible in a habitable room (the bedroom) of the Applicant's dwelling - audibility of the air-conditioning units in the bedroom of the Applicant's dwelling necessary to be established for the purpose of element of relief sought in the proceedings - outcome did not amount to effective capitulation on all matters in contention - inappropriate to undertake hypothetical merit assessment on matter where the acoustic experts were not in agreement - even if appropriate, no basis upon which to do so - not appropriate to make costs order in Applicant's favour COSTS - Respondents concede, during hearing, that it would be appropriate to order that the parties each bear their own costs of the proceedings - appropriate to so order with the intention that each party bear their own costs of the proceedings COSTS - costs of costs applications in Class 4 proceedings ordinarily follow the event - no basis to depart from this position - Applicant to pay the Respondents' costs of the costs application as agreed or assessed Legislation Cited: Environmental Planning and Assessment Act 1979 Protection of the Environment Operations Act 1997 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Uniform Civil Procedure Rules 2005 Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96 Latoudis v Casey (1990) 170 CLR 534 Nadilo v Eagleton [2020] NSWLEC 95 One.Tel Limited v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270 Ralph Lauren 57 Pty Ltd v Byron Shire Council (2014) 199 LGERA 424; [2014] NSWCA 107 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997)186 CLR 622; [1997] HCA 6 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Walker v Siasat [2014] NSWLEC 86 Zhang v Harutoonian [2020] NSWLEC 39 Category: Costs Parties: Ms Deborah Nadilo (Applicant) Ms Sally Eagleton (First Respondent) Mr Jason Eagleton (Second Respondent) Representation: Counsel: Ms A Pearman, barrister (Applicant) Ms L Nurpuri, barrister (Respondent)