Collins v McElhone [2007] NSWLEC 45

Land and Environment Court of New South Wales

CITATION : Collins v McElhone [2007] NSWLEC 45

APPLICANT PARTIES : Mei Collins RESPONDENT Barbara McElhone

FILE NUMBER(S) : 40110 of 2006

CORAM: Pain J

KEY ISSUES: Costs :- exercise of discretion to award costs in contested Class 4 proceedings

LEGISLATION CITED: Land and Environment Court Act 1979 s 69

CASES CITED: Collins v McElhone [2006] NSWLEC 348; Oshlack v Richmond River Council (1993) 193 CLR 72

DATES OF HEARING: 2 February 2007

EX TEMPORE JUDGMENT DATE : 2 February 2007

APPLICANT Mr S Berveling SOLICITOR LEGAL REPRESENTATIVES: Hanes & Co RESPONDENT Mr R O'Gorman-Hughes SOLICITOR Minter Ellison

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Pain J

2 February 2007

40110 of 2006 Mei Yu Collins v Barbara McElhone

EX TEMPORE JUDGMENT ON COSTS 1 Her Honour: I handed down my decision in this matter Collins v McElhone [2006] NSWLEC 348 on 21 June 2006 and made the following orders: 1. The Class 4 application is dismissed. 2. The Respondent's undertaking is noted. 3. Costs are reserved.

2 The Respondent now seeks her costs of the proceedings on the basis that she was the successful party and there is no disentitling conduct on her part. Section 69 of the Land and Environment Court Act 1979 provides the Court with broad discretion on costs. The usual rule in civil enforcement proceedings is that the successful party is entitled to a costs order in its favour unless there is disentitling conduct; see Oshlack v Richmond River Council (1998) 193 CLR 72 per McHugh J at 97 - 98. The Applicant agrees with these submissions but says that there is disentitling conduct and that this application for costs is premature.