Murray v Valaire [No. 2] [2001] NSWLEC 241

Land and Environment Court of New South Wales

CITATION : Murray v Valaire [No. 2] [2001] NSWLEC 241 APPLICANT: Craig Murray PARTIES : RESPONDENT: Trevor Valaire FILE NUMBER(S) : 40152 of 2000 CORAM: Lloyd J KEY ISSUES: Costs :- proceedings not continued to conclusion - subject matter resolved in other proceedings - applicant not almost certain to have succeeded in a hearing - no order as to costs LEGISLATION CITED: CASES CITED: Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 DATES OF HEARING: 07/03/2001 EX TEMPORE JUDGMENT DATE : 03/07/2001

APPLICANT: Mr P R Clay (Barrister) SOLICITORS: Blake Dawson Waldron LEGAL REPRESENTATIVES: RESPONDENT: Mr D R Parry (Barrister) SOLICITORS: Abbott Tout

JUDGMENT:

3 IN THE LAND AND Matter No.: 40152 of 2000 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 7 March 2001

Craig Murray Applicant v Trevor Valaire Respondent EXTEMPORE JUDGMENT [No. 2]

HIS HONOUR: 1. On 6 October 2000 the applicant commenced proceedings in the Court claiming an order that the respondent be restrained from carrying out building works at No. 27 Darling Street, Balmain which were being carried out contrary to a development consent granted by Leichhardt Council. The applicant also claimed an order that the respondent remove works already carried out which have been done contrary to the development consent. 2. The respondent contended that the works being carried out were in conformity with a construction certificate that had been issued by Leichhardt Council and that such works were, as a consequence, not unlawful. 3. On 25 October 2000 Leichhardt Council commenced proceedings in the Court against the respondent claiming a declaration that the construction certificate issued by it was void and further claiming an injunction restraining the respondent from carrying out any further work at No. 27 Darling Street in reliance upon that construction certificate. 4. The present proceedings were set down for hearing in the Court on 1 December 2000. On 25 October 2000, however, the hearing date was vacated and the matter re-listed for mention on 4 December 2000, following the hearing of the proceedings which had been commenced by the council and which had also been listed for hearing on 1 December 2000. 5. On 30 November 2000, however, consent orders were filed in the proceedings brought by Leichhardt Council. The consent orders effectively resolved those proceedings. The respondent gave a written undertaking to the council to return to the council the construction certificate and to not act on that certificate or carry out any building work pursuant to that certificate. The respondent also undertook to demolish certain work which he had erected on the property. 6. A new construction certificate was issued by the council on 29 November 2000, the plans of which apparently conform with the development consent. The effect of the surrender of the first construction certificate and the issuing of the new construction certificate appears to have satisfied the applicant's claim in the present proceedings. Although no formal orders have been made disposing of the present proceedings, there is clearly no utility in the matter proceeding to the hearing. The applicant nevertheless applies for its costs of the proceedings. 7. The approach of a court to applications for costs where the proceedings have not proceeded to a conclusion is authoritatively explained by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624: In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. Where there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. … The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they have avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. 8. His Honour continues at 625: Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. … If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable, until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the costs of the proceedings. This approach has been adopted in a large number of cases. 9. In the present case it is submitted on behalf of the applicant that he has succeeded in that the illegal building work is being removed and is not being rebuilt; and that no explanation has been proffered by the respondent for his actions. It does not follow, however, if this action had proceeded to a conclusion, that the applicant was, as McHugh J says, "almost certain to have succeeded". 10. There is a suggestion in the events which I have described that the respondent was carrying out building work pursuant to the construction certificate, which he subsequently undertook to return to the council. 11. The Court has a general discretion. If the case had proceeded to a conclusion, the respondent may have persuaded the Court that he was misled by the construction certificate into believing that the Council had modified the consent in accordance therewith. I express no concluded view as to that because I have not heard all the facts of the case. It is not appropriate, as McHugh J said for the Court to try hypothetical action. 12. In my opinion, I should apply what McHugh J said in Lai Qin at 625, namely, that the proper exercise of the cost discretion will usually mean that the Court will make no order as to the costs of the proceedings in these circumstances and that is the course I propose to follow. There will be no order as to the general costs of the proceedings. 13. That deals with the applicant's application for costs. The respondent has an application for costs. 14. COUNSEL FURTHER ADDRESSED ON COSTS 15. HIS HONOUR: In the circumstances outlined by counsel there will be an order that the applicant pay the respondent's costs of the proceedings from 7 December 2000. The exhibits may be returned. I hereby certify that the preceding 15 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd