2 Phillip Rise Pty Ltd v Kempsey Shire Council (No 2) [2023] NSWLEC 56

Land and Environment Court New South Wales

Medium Neutral Citation: 2 Phillip Rise Pty Ltd v Kempsey Shire Council (No 2) [2023] NSWLEC 56 Hearing dates: 30 March and 3 April 2023 and written submissions Date of orders: 30 May 2023 Decision date: 30 May 2023 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [14] Catchwords: COSTS - costs of stay application pending consideration of whether to appeal principal decision - stay granted - stay expired by effluxion of time with no appeal commenced - costs ordinarily follow the event ‑ no reason to "otherwise order" - Respondent ordered to pay Applicant's costs of stay application and of costs application Legislation Cited: Civil Procedure Act 2005, s 98(1) Cases Cited: 2 Phillip Rise Pty Ltd v Kempsey Shire Council [2023] NSWLEC 28 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Category: Costs Parties: 2 Phillip Rise Pty Ltd (Applicant) Kempsey Shire Council (Respondent) Representation: Counsel: Dr N Brunton, solicitor Mr M Seymour, barrister

Solicitors: Norton Rose Fulbright Australia (Applicant) Local Government Legal (Respondent) File Number(s): 88745 of 2022 Publication restriction: No

TABLE OF CONTENTS Introduction The stay application orders The Company's submissions on costs of the stay application The Council's submissions The Company's reply submissions Consideration Orders

Judgment

Introduction 1. On 22 March 2023, I upheld an appeal by 2 Phillip Rise Pty Ltd (the Company) pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act) against the dismissal by Bradbury AC of the Company's appeal against the refusal of Kempsey Shire Council (the Council) to issue a construction certificate that would permit the Company to implement a development consent granted in 1993 for a development at South West Rocks. For the purposes of understanding the matters that are dealt with in this costs' application concerning a stay application initiated by the Council arising out of my principal decision, familiarity with my principal decision (2 Phillip Rise Pty Ltd v Kempsey Shire Council [2023] NSWLEC 28) is assumed. 2. On 29 March 2023, the Council's legal representatives sought that I stay implementation of the outcome of my principal decision in order to permit the Council to consider whether it wished to pursue an appeal to the Court of Appeal pursuant to s 57 of the Court Act. The detail of the processes which followed this approach seeking a short-term stay of my decision are outlined in the written submissions on the costs of the stay application that have been made on behalf the Company ‑ submissions which are reproduced, in full, below.