TL & TL Tradings Pty Ltd v Parramatta City Council [2017] NSWLEC 142

Land and Environment Court New South Wales

Medium Neutral Citation: TL & TL Tradings Pty Ltd v Parramatta City Council [2017] NSWLEC 142 Hearing dates: 7 September and 17 October 2017 Date of orders: 26 October 2017 Decision date: 26 October 2017 Jurisdiction: Class 1 Before: Moore J Decision: 1 The Applicant's costs application dismissed; and 2 The Applicant is ordered to pay the Respondent's costs of the Applicant's costs application up to the close of business on 6 September 2017 as agreed or assessed and on an indemnity basis thereafter. Catchwords: COSTS - Class 1 merit appeal concerning refused application to modify a development consent for a brothel - modification sought a further trial period - further trial opposed by the Respondent - further trial period granted but for a shorter period sought - further trial period proposed to be subject to a new Plan of Management - new Plan of Management significantly inadequate and major revision required - Applicant did not succeed on remaining contested issues even after concessions made about revisions to the Plan of Management - approval only possible by the Court taking an "amber light" approach to the outcomes - the Applicant could not be regarded as achieving the outcomes sought in its modification application - the Applicant would not have succeeded on a "costs follow the event" basis had that been the required approach - therefore no basis possibly available to consider awarding costs when considered on a "fair and reasonable" basis as required in Class 1 proceedings - costs application dismissed. COSTS - Calderbank offer made by Respondent - offer that there be no order for costs if Applicant withdrew the costs motion - offer not accepted - offer involved a genuine compromise by the offeror - offeror set out details of the basis upon which it said the offeree would be unsuccessful in the costs proceedings - offeree unsuccessful on the bases advance by the offeror - unreasonable of the offeree not to accept the offer - appropriate to order the Applicant to pay the Respondent's costs on an indemnity basis from the time of expiry of the offer. Legislation Cited: Civil Procedure Act 2005, s 98(3) Environmental Planning and Assessment Act 1979, s 79C(1) Land and Environment Court Rules 2007, Pt 3 r 7 Uniform Civil Procedure Rules 2005, Pt 36 r 36.15 Parramatta Development Control Plan 2011, cl 5.6 Parramatta Local Environmental Plan 2011, cl 6.9 Cases Cited: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 Ali v Liverpool City Council [2009] NSWLEC 1327 Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No2) [2008] FCAFC 107 Calderbank v Calderbank [1975] 3 All ER 333 Grant v Kiama Municipal Council [2006] NSWLEC 70 I V Trading Pty Limited v Parramatta City Council [2010] NSWLEC 1170 James v Surf Road Nominees Pty Ltd (No2) [2005] NSWCA 296 Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 Roads and Traffic Authority v McGregor & Anor (No2) [2005] NSWCA 453 Sze Tu v Lowe (No 2) [2015] NSWCA 91 TL & TL Tradings Pty Ltd v Parramatta City Council (No 2) [2016] NSWLEC 150 Category: Costs Parties: TL & TL Tradings Pty Ltd (Applicant) Parramatta City Council (Respondent) Representation: Counsel: Mr A Gadiel, solicitor (Applicant) Dr J Smith, barrister (Respondent)