North Sydney Council v Bewley [2014] NSWLEC 145

Land and Environment Court New South Wales

Medium Neutral Citation: North Sydney Council v Bewley [2014] NSWLEC 145 Hearing dates: 14 August 2014 Decision date: 14 August 2014 Jurisdiction: Class 4 Before: Preston CJ Decision: (1) Grants leave to the applicant to discontinue the proceedings pursuant to r 12.1 of the Uniform Civil Procedure Rules 2005. (2) Orders each party to pay their own costs of the proceedings. Catchwords: PRACTICE AND PROCEDURE - civil enforcement proceedings - applicant sought leave to discontinue - leave required as respondent did not consent to discontinuance - respondent did not oppose grant of leave - leave granted - notice of discontinuance filed

COSTS - discontinuance of proceedings - civil enforcement proceedings to enforce local government order to demolish retaining wall and remove tree - discontinuing applicant sought order that respondent pay costs of proceedings - respondent sought order that applicant pay costs of proceedings - default order under civil procedure rules that discontinuing applicant pay costs - whether Court should order otherwise - onus on discontinuing applicant - whether respondent's conduct prior to or during proceedings unreasonable - respondent's conduct prior to proceedings not so unreasonable as to justify costs order - respondent did not surrender or capitulate - supervening event made prosecution of proceedings futile - proper exercise of discretion to make no order for costs - whether Council should receive order for costs from date of offer to discontinue - respondent did not act unreasonably in not accepting offer - appropriate to order otherwise than default order - each party to pay own costs Legislation Cited: Local Government Act 1993 ss 124, 628(2) Uniform Civil Procedure Rules 2005 Pt 12 r 12.1 Cases Cited: Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424 Category: Principal judgment Parties: North Sydney Council (Applicant) Mrs Roslyn Bewley (Respondent) Representation: Mr A M Pickles (Barrister) (Applicant) Ms A Pearman (Barrister) (Respondent) Sparke Helmore Lawyers (Applicant) Winston Readford Solicitors (Respondent) File Number(s): 40947 of 2013 Publication restriction: No