Shah Friends Pty Ltd v Cumberland Council (No 2) [2023] NSWLEC 55

Land and Environment Court New South Wales

Medium Neutral Citation: Shah Friends Pty Ltd v Cumberland Council (No 2) [2023] NSWLEC 55 Hearing dates: On the papers Date of orders: 9 June 2023 Decision date: 09 June 2023 Jurisdiction: Class 1 Before: Moore J Decision: See order at [34] Catchwords: COSTS ‑ successful appeal pursuant to s 56A of the Land and Environment Court Act 1979 ‑ appeal successful on the grounds not advanced before primary decision‑maker ‑ appeal grounds advanced and argued alleging error on behalf of the primary decision‑maker rejected ‑ majority of originally pleaded grounds abandoned ‑ ordered that there be no order for costs unless a party sought a variation to that position ‑ Applicant proposes variation to the effect that the Respondent pays the Applicant's costs of the appeal ‑ proposed variation to be dealt with on the basis of written submissions ‑ written submissions provided for Applicant and Respondent ‑ Applicant also provides "reply" submissions that advance a completely new basis without leave or notice ‑ written submissions (including "reply" submissions) considered ‑ no basis to depart from original costs determination - application to vary original costs determination dismissed ‑ no order sought for consideration of costs' variation application ‑ no order for the costs of the costs' variation application Legislation Cited: Civil Procedure Act 2005, s 98(1) Land and Environment Court Act 1979, s 56A Cases Cited: Community Association DP270253 v Woollahra Municipal Council [2015] NSWCA 80 Director‑General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited [2015] NSWLEC 49 Port Stephens Council v Jeffrey Sansom (2007) 156 LGERA 125; [2007] NSWCA 299 Shah Friends Pty Ltd v Cumberland Council [2023] NSWLEC 31 Thaina Town v Sydney (2007) 71 NSWLR 230; (2007) 156 LGERA 150 Category: Costs Parties: Shah Friends Pty Ltd (Applicant) Cumberland Council (Respondent) Representation: Counsel: Ms A Pearman, barrister (Applicant) Ms N Hammond, barrister (Respondent)