Council of The City of Botany Bay v Michos [2013] NSWCA 244

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Council of The City of Botany Bay v Michos [2013] NSWCA 244 Hearing dates: 24 July 2013 Decision date: 24 July 2013 Before: Barrett JA at [1]; Gleeson JA at [2]; Sackville AJA at [38] Decision: (1) The application for leave to appeal is dismissed. (2) The application for leave to cross-appeal is dismissed. (3) There is no order as to the costs of the application for leave to cross-appeal. (4) The applicant otherwise pay the respondents' costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - application for leave to appeal - r 20.26 Uniform Civil Procedure Rules - Whitney v Dream Developments Pty Ltd [2013] NSWCA 188 - whether appeal raised a question of public importance or an injustice

APPEAL - application for leave to cross-appeal - where new evidence available - whether primary judge erred in not awarding indemnity costs for the whole proceedings

COSTS - indemnity costs - Calderbank offer - whether indemnity costs should be awarded in respect of leave application Legislation Cited: Civil Procedure Act 2005 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 Daily Examiner Pty Ltd v Mundine [2011] NSWCA 126 Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 Lee v New South Wales Crime Commission [2012] NSWCA 276 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Radnedge v GIO (NSW) (1987) 9 NSWLR 235 Vieira v O'Shea (No 2) [2012] NSWCA 121 Old v McInness & Hodgkinson [2011] NSWCA 410 Whitney v Dream Developments Pty Ltd [2013] NSWCA 188 Category: Procedural and other rulings Parties: Council of the City of Botany Bay (Applicant) Dimitrios Michos and Rene Michos (Respondents) Representation: Counsel: P S Jones (Applicant) I E Davidson SC / A L Connolly (Respondents) Solicitors: McCulloch & Buggy Lawyers (Applicant) JSM Lawyers (Respondents) File Number(s): 2012/228655 Publication restriction: No Decision under appeal Jurisdiction: 9111 Citation: Dimitrios Michos and Rene Michos v Council of the City of Botany Bay (No 3) [2012] NSWSC 1465 Date of Decision: 2012-07-09 00:00:00 Before: Slattery J File Number(s): 2009/4847