Motorplex (Australia) Pty Ltd v Port Stephens Council [No 2] [2007] NSWLEC 770

Land and Environment Court of New South Wales

CITATION : Motorplex (Australia) Pty Ltd v Port Stephens Council [No 2] [2007] NSWLEC 770

APPLICANT Motorplex (Australia) Pty Ltd PARTIES : RESPONDENT Port Stephens Council

FILE NUMBER(S) : 11328 of 2004

CORAM: Preston CJ

KEY ISSUES: Costs :- previous determination of separate issue concluded that endangered ecological communities existed on site - applicant seeks leave to amend Development Application and Class 1 Application to re-locate development outside area of endangered ecological communities - Council seeks to have proceedings dismissed due to costly and protracted proceedings and repeated applications to amend - alternatively Council seeks to make leave to amend conditional upon an order for past costs and security for future costs in favour of Council - proper course is not to dismiss proceedings but to engage in concerted case management and proceed to final hearing as soon as reasonably practicable - leave granted to applicant to amend on terms regulating any further amendment and as to costs thrown away - fair and reasonable that applicant pay Council's costs of and occasioned by the amendment - leave granted to proceed to assessment of costs forthwith - order for security for costs should not be made in circumstances

Civil Procedure Act 2005 Corporations Act 2001 (Cth) s 1335(1) Courts Legislation Amendment Act 2007 LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 cl 55 Land and Environment Court Act 1979 s 39(2), s 69(2), s 69(3), s 69(7) Land and Environment Court Rules 1996 Pt 6 r 1, Pt 16 r 4(2), Supreme Court Rules 1970 Pt 53 r 2(1) Uniform Civil Procedure Rules 2005, Pt 42.21