North Sydney Council v Bewley

Land and Environment Court New South Wales Medium Neutral Citation: North Sydney Council v Bewley [2014] NSWLEC 145 Hearing dates:14 August 2014Decision date: 14 August 2014 Jurisdiction:Class 4Before: 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...