Bobolas v Waverley Council [2022] NSWLEC 35

Land and Environment Court New South Wales

Medium Neutral Citation: Bobolas v Waverley Council [2022] NSWLEC 35 Hearing dates: 30 March 2022 Date of orders: 31 March 2022 Decision date: 31 March 2022 Jurisdiction: Class 4 Before: Pain J Decision: The Court orders: (1) Ms Elena Bobolas and Mrs Mary Bobolas must pay the costs of the Respondent Council in the proceedings, as agreed or assessed. Catchwords: COSTS – dismissal of summons relevant event informing awarding of costs to successful respondent – no disentitling conduct Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Local Government Act 1993 (NSW), ss 124, 678 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Bobolas v Waverley Council (No 3) [2021] NSWLEC 63 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 69 Category: Costs Parties: Liana Bobolas (First Applicant) Elena Bobolas (Second Applicant) Mary Bobolas (Third Applicant) Waverley Council (Respondent) Representation: Counsel: E Bobolas (LIP and agent) (Second and Third Applicants) L Sims (Respondent) Solicitors: N/A (Applicants) Wilshere Webb Staunton Beattie (Respondent) File Number(s): 2021/152006

Judgment 1. In Bobolas v Waverley Council (No 3) [2021] NSWLEC 63 (Bobolas No 3) Duggan J dismissed the Applicants' judicial review challenge of a decision by the Respondent Waverley Council (the Council) to exercise its powers under s 678 of the Local Government Act 1993 (NSW) (LG Act) to carry out work at 19 Boonara Avenue Bondi (the premises) when an order to remove waste from the property issued under s 124 of the LG Act had not been complied with in the Council's view. The proceedings also sought to restrain the Council from alleged anticipated breaches of the LG Act. The Applicants were unsuccessful in establishing a breach of the LG Act or in obtaining a restraining order. Their summons was dismissed. 2. The background facts are that the Council issued an order under s 124 of the LG Act on 29 January 2020 requiring the removal of waste from the premises within a 28 day period. A notice of intention to enter premises to carry out work not done pursuant to s 678(1) of the LG Act was issued by the Council on 20 May 2021. It stated that the Council intended to enter onto the premises to undertake necessary waste removal work on 1 June 2021. At the interim injunction application hearing on 31 May 2021 the Council undertook not to enter onto the premises until one day after the determination of proceedings, with the hearing set down for 4 June 2021. 3. I am determining a notice of motion dated 21 June 2021 the Council has filed seeking an order that its costs of the proceedings be paid by the Applicants (Respondents on the Council's motion). The notice of motion was supported by an affidavit of Cecilia Rose affirmed 21 June 2021 which essentially identified the procedural history of the matter and annexed the Applicants' summons and the judgment in Bobolas No 3. The Council has advised the Court that it does not press an order for costs against Ms Lianna Bobolas. It does press a costs order against Ms Elena Bobolas and Ms Mary Bobolas her mother. Ms Elena Bobolas appeared as agent for her mother. Ms Lianna Bobolas did not appear. Ms Elena Bobolas submitted that the appropriate costs order was that each party pay their own costs. 4. The costs rule that applies in Class 4 proceedings is generally Uniform Civil Procedure Rule 2005 (NSW) (UCPR) r 42.1 to the effect that costs follow the event.