Kelly v Randwick City Council [2019] NSWLEC 43

Land and Environment Court New South Wales

Medium Neutral Citation: Kelly v Randwick City Council [2019] NSWLEC 43 Hearing dates: 14 March 2019 Date of orders: 05 April 2019 Decision date: 05 April 2019 Jurisdiction: Class 1 Before: Moore J Decision: (1) The Applicant's application for a costs order in respect of the hearing before Dickson C is dismissed; (2) The Applicant is to pay the Respondent's costs of the costs application as agreed or assessed, with the Respondent's photocopying costs capped at 20% of the costs of the photocopying undertaken by the Respondent or on behalf of the Respondent by its legal advisers; and (3) The exhibits before Moore J and the Court Book are returned. Catchwords: COSTS - Class 1 merit appeal - application by successful party for a costs order - "fair and reasonable" test in the Land and Environment Court Rules 2007 - matters in favour of a costs order balanced by matters weighing against such an order - costs order refused - costs ordinarily follow the event on costs applications - whether purported Calderbank offer provided basis to award costs of costs application on an indemnity basis - no basis to depart from award of costs on an ordinary basis - Respondent awarded costs of costs motion – cap placed on the recoverable costs of photocopying Legislation Cited: Land and Environment Court Act 1979, ss 34AA and 56A Land and Environment Court Rules 2007, r 3.7 Randwick Local Environmental Plan 2012, cll 4.1A and 4.6 Uniform Civil Procedure Rules 2005, r 18.6(2) Willoughby Local Environmental Plan 2012 Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 DM & Longbow Pty limited v Willoughby Council [2017] NSWLEC 173 DM & Longbow Pty limited v Willoughby Council [2017] NSWLEC 1358 Kelly v Randwick City Council [2018] NSWLEC 1322 Sze Tu v Lowe (No 2) [2015] NSWCA 91 TL & TL Tradings Pty Ltd v Parramatta City Council [2017] NSWLEC 142 Category: Costs Parties: Craig Kelly (Applicant) Randwick City Council (Respondent) Representation: Counsel: Mr P Tomasetti SC and Ms A Hemmings, barrister (Applicant) Dr J Smith, barrister (Respondent)