Warringah Shire Council v Koala-Ty Pizza Pty Ltd [1988] NSWLEC 25

Land and Environment Court of New South Wales

CITATION : Warringah Shire Council v Koala-Ty Pizza Pty Ltd [1988] NSWLEC 25 APPLICANT Warringah Shire Council PARTIES : RESPONDENT Koala-Ty Pizza Pty Ltd FILE NUMBER(S) : 40185 of 1987 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Warringah Local Environmental Plan 1985 Hedley v. National Commercial Banking Corp. of Australia (1986) Donald Campbell & Co. Ltd. v. Pollak (1927); F. King & Co. v. Gillard & Co. (1905); CASES CITED: Edmund v. Martell (1907); Ritter v. Godfrey (1920); Sunday Times Newspaper Co. Ltd. v. McIntosh (1933); Redden v. Chapman (1949) DATES OF HEARING: DATE OF JUDGMENT: 10/06/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: On 21st June, 1988 I delivered Judgment dismissing an application for declaration and injunction brought in class 4 proceedings. I reserved the question of costs.

The successful Respondent now seeks an order for costs which is opposed by the Applicant on the ground that special circumstances exist which operate to disentitle the successful Respondent to an order for its full costs. It submits that it is entitled only to a reasonable portion of its costs.

The special circumstances claimed by the Applicant refer to the fact that at the hearing (which occupied two days) Counsel for the Respondent in his final address translated a submission based upon the effect of the Warringah Local Environmental Plan 1985 which came into force subsequent to the date of the grant of the relevant development consent (the conditions of which the Applicant in the class 4 proceedings was seeking to enforce) from a submission merely bearing upon the exercise of judicial discretion whether to grant the relief sought into a submission having the legal effect of completely barring the Applicant's entitlement to the relief sought. In my Judgment I adopted the Respondent's submission. Notwithstanding that decision (which would have been sufficient in itself to dispose of the proceedings in favour of the Respondent) I went on to consider the true meaning of the disputed condition of development consent and concluded that the meaning contended for by the Respondent was the true legal effe ct of the condition. It was on account of each of these holdings that I dismissed the application.