Council of the City of Ryde v Sally Haddad (as executrix of the estate of the late Dr Jim Haddad) (No 2)

THE COURT: This judgment deals with the costs of the successful appeal by the appellant (the Council). [1] The Council was granted leave to appeal against a decision of a Judge of the Land and Environment Court (L & E Court) on a question of law. The appeal was allowed, with the result that the Council’s appeal to the L & E Court against a decision of a Commissioner granting development consent to the respondent [2] was also allowed.

The Court made the following observations in the Principal Judgment concerning costs: [3]

The respondent was given the opportunity to make further written submissions on costs. She filed brief written submissions which relied on a letter dated 18 December 2017 from her solicitors to the Council’s solicitors, as follows:

In a subsequent letter dated 2 February 2018, the respondent’s solicitors stated that the respondent was:

As the Council pointed out in its submissions, the respondent actively participated in the L & E Court proceedings. She argued in support of the (incorrect) interpretation of Standard Instrument (Local Environmental Plans) Order 2006 which the primary Judge accepted. The Council was therefore obliged to seek leave to appeal if it was to challenge the decision of the L & E Court.

The Council filed its Summons seeking leave to appeal on 29 August 2017, nearly four months before the letter from the respondent’s solicitors of 18 December 2017 was sent. That letter did not accept that the respondent should pay the Council’s costs incurred to that date. The letter of 2 February 2018 took the same approach to the costs of the proceedings.

Furthermore, in order for the appeal to be allowed the Council had to demonstrate in this Court that the application for leave to appeal involved a question of law suitable for the grant of leave. It also had to demonstrate that the primary Judge erred in law. Unless the Council’s appeal succeeded, the respondent would have retained the benefit of the development consent (whether or not she took advantage of it while she retained title) and the decision of the L & E Court would have stood as a precedent on a potentially significant question of construction.

In these circumstances, the respondent should pay the costs of the appeal (including the costs of the application for leave to appeal).