Willoughby City Council v Randall Pty Limited t/as Monkey Bar Car Park [2005] NSWLEC 622

Land and Environment Court of New South Wales

CITATION : Willoughby City Council v Randall Pty Limited t/as Monkey Bar Car Park [2005] NSWLEC 622

APPLICANT Willoughby City Council PARTIES : RESPONDENT Randall Pty Limited t/as Monkey Bar Car Park

FILE NUMBER(S) : 41220 of 2003

CORAM: Talbot ACJ

KEY ISSUES: Costs :- differential costs order

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Local Government Act 1993

DATES OF HEARING: 17/10/05

DATE OF JUDGMENT: 11/04/2005

APPLICANT Ms H P Irish (Barrister) SOLICITORS Mallesons Stephen Jacques LEGAL REPRESENTATIVES:

RESPONDENT Mr P R Clay (Barrister) SOLICITORS Moloney Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot ACJ

4 November 2005

41220 of 2003 Willoughby City Council v Randall Pty Limited t/as Monkey Bar Car Park

JUDGMENT 1 Talbot ACJ: This matter has a long and troubled history that culminated in a judgment in favour of the applicant, Willoughby City Council ("the council") on 30 August 2005 and the making of final orders against Randall Pty Limited trading as Monkey Bar Car Park ("the respondent") on 17 October 2005. The history during 2003 and 2004 is conveniently summarised in a judgment that I delivered on 13 January 2005 in respect of an application for costs by the respondent following leave being granted to the applicant to rely on a Further Amended Class 4 Application and Further Amended Points of Claim filed on 9 December 2004. The order for costs made on 13 January 2005 was limited to the costs of a hearing which took place on 23 and 24 November 2004 and no order was made in relation to the costs incurred up to 23 November 2004 for the reasons explained in paragraph [18] of the judgment. 2 On the one hand the respondent asserts that it was the applicant's inability to settle on final points of claim that could be sustained by the evidence that caused the earlier hearing in November 2004 to be aborted whereas on the other hand the applicant claims that the amendments became necessary mainly on account of the changes made to the way in which the car park was being operated by the respondent. 3 The applicant has amended its Class 4 Application or Points of Claim on seven occasions. Interlocutory orders were made by consent on 17 October 2003 and continued with variations on 22 April 2004. The interlocutory orders were discharged when the final orders were made in October 2005. 4 While the Class 4 proceedings were on foot, two applications for modification of the existing consent were made by the respondent. After various appeals under s 56A of the Land and Environment Court Act and an appeal to the Court of Appeal, Commissioner Bly refused both applications. The Class 1 appeals were designed to have the development consent amended in such a way that the operation of the car park could be carried on in a way consistent with the conditions of consent. 5 It must be said that apart from agreeing to the interlocutory orders the respondent has consistently resisted any entreaty by the council to bring its operation into line with the terms of the development consent including taking every forensic opportunity to defer a final outcome in the proceedings. The result is that for a considerable period of the time throughout the whole of 2004 and part of 2005 there was no opportunity to litigate the real issues between the parties as a consequence of the combination of the council's inability to adequately plead its case and the respondent's appeals and challenges whenever the opportunity arose. 6 The original Class 4 Application claimed relief in relation to the alleged failure of the respondent to allow the first two hours of parking in the Monkey Bar Car Park free, in breach of a condition of the development consent and further that an Order made pursuant to s 121B of the Local Government Act 1993 ("the LG Act") had not been complied with. The first amendment added relief for an alleged failure to provide manual fee collection and ticket checking at the exit boom gate and the leasing of spaces in breach of condition 41 of the consent. The second amendment involved an allegation regarding weekend and early bird rate parking, in breach of condition 41, and the offering of exclusively licensed and permanent spaces to other than the groups designated by condition 41. The third amendment raised issues regarding the operation of a public car park without approval on the basis that spaces were being licensed and the making of spaces available for early bird, night rate and weekend rate parking. Despite directions made by consent on 2 April 2004 and 24 September 2004 that the respondent file and serve Points of Defence by 10 April 2004 and 3 November 2004 respectively, no Points of Defence were filed or served until 22 November 2004. A Further Amended Class 4 Application and a Further Amended Points of Claim filed and served on 8 December 2004, following the hearing in the previous month, did not directly raise new issues but rather addressed the manner of pleading and its effectiveness. Another amended Class 4 Application and Points of Claim added specific claims for relief that cars only park in designated car parking spaces and orders that signs be erected indicating that the spaces are only available for persons within the designated user groups and parking should only be within designated spaces. There was a Further Amended Points of Claim dated 24 June 2005, which did not change the underlying nature of the case. Amended Points of Defence were filed on 30 June 2005. The defence was expanded to cover additional paragraphs within the final Further Amended Points of Claim. A Further Amended Class 4 Application was filed and served on 13 July 2004 that did no more than clarify the identification of designated spaces. 7 The evolution of the case and the settling of the real issues is as much a consequence of the ongoing investigation by the council in relation to various facets of the operation of the car park and the attempts by the respondent to regularise its operation by the device of applications for modification pursuant to s 96 of the Environmental Planning and Assessment Act 1979 as it is a product of the apparent inability of the council to settle on the exact nature of the claims. It is my view therefore that the order made by me on 13 January 2005 is sufficient recognition of any default on the part of the council in respect of its pleadings. 8 It is a general rule that unless a particular issue or group of issues is separable and clearly significant in the context of an award of costs the Court will not attempt to differentiate between those particular issues on which a party was successful and those on which it failed. Although the Court has an absolute discretion in relation to the question of costs, in the absence of special circumstances there is a reasonable expectation that a successful party will obtain an order for payment of their costs by the other party. Nevertheless the discretion must be exercised judicially and accordingly it can be reasonable that where a party has been successful only on a portion of the claim it be required to bear the expense of litigating that portion on which it has failed. Notions of fairness and justice are involved and where costs have been significantly increased by either evidence that is rejected or the pursuit of issues upon which the successful party has failed, then that party, who is otherwise successful, may be required to set off the costs in respect of those matters against the general costs order in its favour. 9 Ultimately the council was successful in persuading the Court that the car park was being conducted in a manner otherwise than in accordance with the conditions of consent and that in effect that meant that the car park was a public car park which was not authorised by law. The council was totally unsuccessful in relation to the claim that the respondent failed to comply with the s 121B Orders and a minor issue in respect of an alleged breach of an Australian Standard for parking facilities. Furthermore evidence in relation to a series of surveys and interviews with persons using the car park was totally rejected on the basis of its unreliability. It is self evident that significant costs would have been incurred in relation to the surveys and interviews and it is appropriate that the respondent should not be required to bear the costs in that respect. 10 Having regard to the whole of the circumstances I am prepared to a make a differential costs order in favour of the applicant to the effect that the respondent pay the applicant's costs in relation to the proceedings apart from the costs the subject of the Order made on 13 January 2005, the costs in relation to the s 121B Orders and the costs incurred in relation to surveys and interviews with persons using the car park.