Thompson v City of Canada Bay Council [2004] NSWLEC 757

Land and Environment Court of New South Wales

CITATION : Thompson v City of Canada Bay Council [2004] NSWLEC 757 PARTIES : Mark Thompson (Appl) City of Canada Bay Council (Resp) FILE NUMBER(S) : 11595 of 2003 CORAM: McClellan CJ Costs :- Whether fair and reasonable in the circumstances of the case Council order which unless complied with KEY ISSUES: compelled the property owner to appeal PRACTICE & PROCEDURE: Need for proportionality in litigation Responsiblity of legal profession to ensure disputes are not met with unnecessary costs burdens. LEGISLATION CITED: CASES CITED: DATES OF HEARING: 22 October 2004 EX TEMPORE 10/22/2004 JUDGMENT DATE :

D Miller (Appl) PricewaterhouseCoopers Legal (Sol - Appl)

LEGAL REPRESENTATIVES: I Hemmings (Resp) Maddocks (Sol - Resp)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

McCLELLAN J

FRIDAY 22 OCTOBER 2004

11595/03 THOMPSON v CANADA BAY CITY COUNCIL

JUDGMENT 1 HIS HONOUR: This is the hearing in relation to costs in this matter. I determined the outcome of the appeal in September, delivering my reasons on 8 September 2004. I concluded that the applicant should succeed in the appeal and the order made by the Council should be revoked. 2 The matter has a regrettable history. As is now plain, it concerns a neighbour dispute in relation to a retaining wall. The applicant owns a property on which a wall has existed for many years and which has been altered. When the next door neighbour, Mr Dal Cin, undertook building work on his property, excavation was made adjacent to and below the wall and Mr Dal Cin, with the assistance of engineers, raised concerns as to the stability of the applicant's wall. The matter was ultimately elevated to the point where the Council issued the s 121B order making it necessary for the applicant to bring proceedings in this Court. The applicant has wholly succeeded in the proceedings, as is plain from my reasons for decision. 3 The rules in relation to costs orders in this Court in classes 1, 2 and 3 were recently amended. The test now to be applied is whether or not an order for costs would be fair and reasonable in all of the circumstances of the case. 4 Proceedings such as the present fall into a different category to conventional planning appeals. In a conventional planning appeal, the applicant for consent has the choice of whether or not to pursue the appeal and bring proceedings in this Court. However, when a property owner receives an order from the council, unless the property owner accepts that it is necessary to comply with the order, the only remedy available is to appeal to this Court. 5 In the circumstances of the present case, the appeal was brought and the applicant's position supported by expert material from engineers. As it happens, the Council initially accepted the material from the engineers and indicated as much to the applicant's solicitors and invited them to withdraw the appeal. Unfortunately, for reasons which are not apparent to me, the Council altered its position and it was necessary for these proceedings to continue. 6 In February of this year the Council offered to mediate, an offer which was not immediately taken up by the applicant. That offer and response were made at a time when the Council was altering its position in relation to its preparedness to accept the applicant's expert opinion. When the solicitor for the Council was asked what might have been achieved by mediation, he responded that it may have been possible through that process to have set up some facility whereby a further expert, independent of the parties, might have been engaged to provide an opinion. 7 Similar questions arose before me in May when an application was made by the Council to the Court for the appointment of a court expert to provide an opinion on the matter. After hearing argument, I formed the view that if I went down that path I would be inflicting unnecessary further costs upon the parties. I am satisfied, having now had an opportunity to examine all of the available evidence, that the decision I made on that occasion was correct. It follows that the reluctance of the applicant to mediate in this case was a reluctance, which in my opinion, was justified. 8 The material before the Court from the experts was of considerable assistance in the resolution of this case. However, that material was best assessed having regard to the obvious appearance of the wall as it had been exposed. A short visit to the site should, in my opinion, have brought to the Council's engineers an appreciation that the notice it had served could not be sustained. To have required the parties to have spent even more money identifying an opinion which, in my view, was relatively obvious, would not have been appropriate. 9 Furthermore, it is now plain that this matter is in truth a dispute between two neighbours. The Council was, in circumstances not apparent to me, persuaded that it was appropriate to issue a notice which required the resources of this Court before it could be set aside. However the proximity of interests between the neighbour, Mr Dal Cin, and the Council are apparent from the fact that the Council, as I infer from the material before me and the submissions which have been made, was at least in part funded in the defence of the appeal by the neighbour. Those arrangements were apparently put in place shortly before the hearing, but it is plain that unless Mr Dal Cin had been involved in any mediation process there would have been little prospect of the matter being resolved in any event. There was no suggestion back in February that the Council was able or indeed had asked Mr Dal Cin to become involved in the settlement processes. 10 This matter is a sorry illustration of the inadequacy of the legal system in some cases to efficiently and effectively resolve parties in disputes. All of the factors involved in the matter are not apparent to me and, accordingly, it would be imprudent of me to pass any further comment on the actions of any party. However, the fact that tens of thousands of dollars have been spent in the resolution of a dispute between neighbours that has involved the expenditure of public money and the Court's resources, requires me to emphasise yet again the responsibility of the legal profession in ensuring that disputes of this nature are not met with unnecessary costs burdens. There has been much discussion in recent times, to which I have contributed myself, about the need for proportionality in litigation. Correctly understood, that concept is that the costs expended by parties should be confined to those which are reasonable, having regard to the nature of the dispute which requires resolution. Proportionality can only be achieved if the legal profession are continually conscious of the obligation they have to manage their clients' affairs so as to ensure that matters are not elevated to the point where monies are wasted. I am not critical of any party in these proceedings because I do not know all of the circumstances, but I emphasise that it is particularly important that those who act for public authorities ensure that public monies are spent only when necessary and to the degree necessary to resolve disputes. 11 In the circumstances of this case, I am satisfied that it is appropriate that the applicant receive an order for costs. As I have indicated, in my opinion, the applicant was put to unnecessary expense. Although an offer for mediation was made, I am not persuaded that it was unreasonable in the circumstances of this case for the applicant to reject that offer. Accordingly, in my opinion, it is both fair and reasonable for the successful applicant to be compensated by receiving an order for the costs of the proceedings. 12 Mr Miller asks for a special order. I am not persuaded that that would be appropriate in this case. Perhaps if I had known more of the true relationship between the neighbours and the involvement of the Council, further consideration might have been given to such an order. However, I do not know other than what I have indicated and, in my opinion, that would not justify a special order. It is to be hoped that having now litigated this matter to a conclusion, the neighbours will be able to resolve their differences and work out their relationship so that disputes of this nature do not arise in the future. 13 Accordingly, I order the respondent to pay the applicant's costs of the proceedings. **********