Application for costs – where appellant / applicant
and respondent / applicant both made an application for costs in
respect of a proceeding dealt with on 30 April 2015 – where
substantive proceeding concerned with an appeal against certain
conditions imposed by the respondent Council – where
appellant maintained his position notwithstanding material
compromises by his expert witness – where material aspects of
appellant's evidence unsatisfactory - where unlawful works of
appellant caused nuisance to adjoining land.
Facts: This matter concerned applications for
costs by both the appellant and the respondent.
The appeal related to an Enforcement Notice issued in relation
to works for the development of a house, swimming pool and tennis
court on land located at Morningside.
The issues for the Court at the initial hearing had been:
whether the appellant had carried out filling in breach of the
development conditions and the relevant planning schemes;
whether the works had caused ponding impacting on neighbouring
if so, whether remedial works proposed by the respondent's
engineer were reasonably necessary to rectify the problems
resulting from the introduction of the fill.
The respondent's engineer had identified a number of
remedial works, including the removal of fill from the surface of
an access easement.
The appeal had been allowed subject to the appellant being
required to comply with the conditions package of the respondent as
modified by the drainage relief works identified by the
respondent's engineer, save for the requirement to lower the
surface level of the access easement.
The respondent contended for a favourable costs order on the
basis that the appellant had systematically filled the site in
breach of the conditions of approval, had falsely denied placing
the fill on the site and had modified his position to best suit his
The appellant also sought costs and argued that he was the
innocent victim of unlawful uses on his land and that the
respondent's conduct lacked "justification and common
Decision: The Court held:
The appellant's submissions on costs were without merit and
accordingly his application for costs should be dismissed.
This was not a case of unintended unlawful works occurring. It
was a deliberate and systematic course of conduct which resulted in
a nuisance being caused to neighbouring properties. Issues raised
in the proceeding went beyond the personal rights and interests of
There was no doubt that the respondent was largely successful
in the appeal. The only success achieved by the appellant was not
being required to carry out the excavation works associated with
the easement. That issue occupied little time in the conduct of the
appeal and the appellant's success was largely the result of an
unprompted concession on the part of the respondent's
The history of the matter revealed a course of conduct on the
part of the appellant which made avoidable litigation
Given the level of success enjoyed by the respondent and the
limited impact the easement issue had in the overall conduct of the
appeal, it was appropriate to order the appellant to pay 85% of the
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The High Court of Australia has granted special leave to appeal a decision of the NSWCA that upheld an adjudication determination under the NSW 1999.
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