Oberon Shire Council v Kiangatha Holdings Pty Ltd [2021] NSWLEC 30

Land and Environment Court New South Wales

Medium Neutral Citation: Oberon Shire Council v Kiangatha Holdings Pty Ltd [2021] NSWLEC 30 Hearing dates: 7 December 2020 Date of orders: 14 April 2021 Decision date: 14 April 2021 Jurisdiction: Class 4 Before: Moore J Decision: See orders at [178] Catchwords: PRACTICE AND PROCEDURE - application by the Respondent for a determination of the terms of an alleged settlement of the proceedings - whether the parties had agreed to the terms of a settlement resolving the proceedings so as to enable the use of s 73 of the Civil Procedure Act 2005 to permit determination of the terms of the settlement - requirement that any settlement resolve all issues in dispute between the parties - all issues in dispute between the parties not resolved - no settlement to which the statutory provision could be applied AMENDMENT APPLICATION - application to rely on proposed Amended Summons and proposed Amended Points of Claim - outstanding merit issue resolved as a consequence of Respondent giving undertaking to the Court to the effect of the order sought by the Applicant in its proposed Amended Summons - all merit issues resolved as a consequence of the undertaking - whether to permit amendment nonetheless - terms of settlement between the parties of merit issues arising as the direct consequence of the proposal to amend - although amendment not strictly necessary, leave to amend appropriate to be granted in order to provide proper contextual framework for resolution of the proceedings - application for leave to amend granted - proceedings discontinued by consent on the basis of the Amended Summons and Amended Points of Claim. COSTS - Applicant seeks an order following discontinuance of the proceedings - whether the Respondent effectively capitulated on the issues in the proceedings without the necessity for determination of any merit matters - whether there was any unreasonable conduct on behalf of the Respondent - Respondent capitulated without the necessity for any determination of merit matters - not necessary to consider whether Respondent acted unreasonably - appropriate to order the Respondent to pay the Applicant's costs of the proceedings - appropriateness of a gross sum costs order - gross sum costs order not opposed - order that the Respondent pay the Applicant's costs in the gross sum of $120,000. Legislation Cited: Civil Procedure Act 2005, ss 73 and 98(4) Environmental Planning and Assessment Act 1979, s 9.45 Protection of the Environment Operations Act 1997, s 120(1) Uniform Civil Procedure Rules 2005, r 42.19 Cases Cited: Blazevic Holdings Pty Ltd v Warwick S Grave [2011] NSWSC 1504 Bobi Damcevski v Emilios Demetriou & Ors [2018] NSWSC 988 Gorczynski v Bendigo and Adelaide Bank Ltd [2016] NSWCA 170 Grave v Blazevic Holdings Pty Limited [2012] NSWCA 329 GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 Kabir Ahmed & Ors v Ayubur Rahman Chowdhury & Ors [2011] NSWSC 893 Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96 Kiangatha Holdings Pty Ltd v Oberon Council [2020] NSWLEC 1386 Kiangatha Holdings Pty Ltd v WaterNSW [2020] NSWCCA 263 Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 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 WaterNSW v Kiangatha Holdings Pty Limited; WaterNSW v Laurence Natale [2019] NSWLEC 185 Category: Procedural rulings Parties: Oberon Shire Council (Applicant) Kiangatha Holdings Pty Ltd (Respondent) Representation: Counsel: Mr I Hemmings SC (Applicant) Ms S Vatala, solicitor (Respondent)