LOGWON PTY LTD v WARRINGAH SHIRE COUNCIL

Court of Appeal (NSW)|1991-07-29|Before: Stein J, Kirby P, Mahoney JA, Handley JA

LOGWON PTY LTD v WARRINGAH SHIRE COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and HANDLEY JJA 29 July 1991, 29 July 1991 [1991] NSWCA 173

LAND and ENVIRONMENT - leave to appeal - appeal confined to error of law

Assessor O'Neille makes order in relation to costs - appeal to Land and Environment Court - Stein J dismisses appeal - summons for leave to appeal to Court of Appeal - held: (1) Appeal confined to error of law under Land and Environment Court Act 1979 s56A; (2) No error of law shown; (3) Matter not suitable for leave; (4) Summons dismissed. Land and Environment Court Act 1979, s56A.

Kirby P This summons is one to challenge an order as to costs made in the Landand Environment Court. The claimant sought to delete the words "in relation to costs" in para 1 of the summons. I would give leave for that purpose. However, as deleted, the summons is still confined to challenging in this Court the judgment of Stein J. We are not here reviewing the decision of Assessor O'Neille. So confined, I do not believe that an error of law has been shown in his Honour's reasons or in the interpretation he gave of Assessor O'Neille's decision.

That decision was challenged before Stein J. It was open to his Honour to take the view he took. Indeed, viewed sensibly the approach which his Honour adopted was entirely appropriate. It did not, properly read, constitute an abandonment by his Honour of the discretion he had to exercise in favour of the earlier exercise of discretion by the Assessor. For that reason, and because an error of law must be shown to bring the matter up and has not been shown, I am of the opinion that leave to appeal should be refused.

Mahoney JA I also think it is not an appropriate case for leave to appeal.

The orders of the Court are, accordingly:

The claimant has leave to amend the first paragraph of the summons by the deletion of the words "in relation to costs";
The summons is dismissed with costs; and
The motion for an extension of time is dismissed with no further order as to costs, it being unnecessary for the Court to consider the motion.

Solicitors for Claimant: DC Balog and Associates Counsel for Opponent: DP Wilson

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Judgment (8 paragraphs)

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