Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (No 2) [2009] NSWCA 310

New South Wales Court of Appeal

CITATION: Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (No 2) [2009] NSWCA 310

HEARING DATE(S): On the papers

JUDGMENT DATE: 1 October 2009

JUDGMENT OF: Tobias JA at 1; Young JA at 31; Bergin CJ in Eq at 32

(a) The appeal of the appellant against so much of the order of Pain J dated 28 July 2008 dismissing its application for relief against the first respondent be allowed. (b) Set aside Order 1 made by Pain J on 28 July 2008 insofar as it relates to the Application with respect to the first respondent. (c) Set aside Order 2 made by Pain J on 28 July 2008. DECISION: (d) Declare that the two cabins installed by the first respondent on Lots 40 and 47 on land known as 2868 River Road, Wisemans Ferry, comprising Folio Identifier 1102/1061450 and Folio Identifier 1201/1076039 were installed in breach of Conditions 1, 6, 30 and 41 of Development Consent No. 2430/2003/HE issued by the appellant to the first respondent and dated 1 August 2003. (e) Remit the proceedings as between the Council and the first respondent to the Land and Environment Court to determine the relief, if any, to which the appellant is entitled as a consequence of the breaches referred to in paragraph (d) above. (f) Remit the costs of the hearing at first instance as between the Council and the first respondent to the Land and Environment Court to be determined by the Judge conducting the remitted hearing referred to in paragraph (e) above. (g) The first respondent to pay one half of the appellant's costs of the appeal. (h) The appellant to pay the second respondent's costs of the appeal.

CATCHWORDS: PROCEDURE – Costs – General rule – Costs follow the event – Remittal of question of costs at first instance to Land and Environment Court – Costs of Appeal – Appellant's proceedings and appeal against second respondent based on a false assumption that a construction certificate was required to be issued – Departing from the general rule – Where significant amount of costs thrown away due to successful appellant's conduct of litigation through advancing legally false issue – Evaluation of proportion of costs to be awarded to successful appellant – Entitlement of falsely joined party to costs