Reported Decision : (2006) 144 LGERA 96 Land and Environment Court of New South Wales CITATION : Woollahra Municipal Council v Baranov [2006] NSWLEC 97 APPLICANT Woollahra Municipal Council PARTIES : RESPONDENT Tamara Baranov FILE NUMBER(S) : 40406 of 2004 CORAM: Jagot J KEY ISSUES: Practice and Procedure :- Final order - further order to implement or work out final order - when final order may be varied Land and Environment Court Act 1979 s 16(1A) Land and Environment Court Rules 1996 Pt 15 r 4, Pt 15 r 9 LEGISLATION CITED: Law Reform (Law and Equity) Act 1972 s 6 Local Government Act 1993 s 124, s 672(a), s 672(b)(ii), s 674(1), s 678 Supreme Court Act 1970 Bailey v Marinoff (1971) 125 CLR 529; Cristel v Cristel [1951] 2 KB 725; DJL v The Central Authority (2000) 201 CLR 226; Dowdle v Hillier (1949) 66 WN (NSW) 155; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13; Memel Holdings Pty Ltd v Pittwater Council [2000] NSWLEC 227; CASES CITED: National Parks and Wildlife Service and Another v Stables Perisher Pty Ltd (1990) 20 NSWLR 573; NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403; Permanent Trustee Co (Canberra) Ltd (As Executor of Estate of Andrews) v Stocks and Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45; Phillips v Walsh (1990) 20 NSWLR 206; Re Scott (1964) 82 WN (Pt 1) (NSW) 313; [1964 – 5] NSWR 1636; Scharer v State of New South Wales (2001) 116 LGERA 217; Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438; Woollahra Municipal Council v Ferella [2005] NSWLEC 402 DATES OF HEARING: 14/02/2006 DATE OF JUDGMENT: 03/02/2006 APPLICANT S Duggan LEGAL REPRESENTATIVES: SOLICITORS Home Wilkinson Lowry RESPONDENT T Baranov (in person) JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Jagot J 2 March 2006 40406 of 2004 WOOLLAHRA MUNICIPAL COUNCIL Applicant TAMARA BARANOV Respondent JUDGMENT Jagot J: Introduction 1. On 16 August 2004, the Court made orders in these proceedings as follows: (1) The Applicant engage Stainaway Cleaning ("the Cleaners") to attend at No. 86 Queen Street, Woollahra ("the property") to carry out the sanitisation of the property. (2) The Respondent vacate the property within forty-eight (48) hours, for the period required for the Cleaners to carry out the sanitisation of the property and for repairs to the property to be carried out. (3) The Applicant arrange suitable accommodation for the Respondent for the period required for the Cleaners to sanitise the property. (4) The Cleaners remove, where possible all fixtures, furnishings, floor covering and any material found in the property to be contaminated. (5) The Cleaners prepare a detailed list of all items removed from the property. (6) The Cleaners prepare a detailed list of all items disposed of as being damages [sic] beyond repair as a result of contamination. (7) All items that are capable of salvage shall be sanitised by the Cleaners and returned to the property. (8) Following the sanitisation of the property, the Applicant immediately arrange for the property to be treated by a suitably accredited pest/vermin controller. (9) Following pest control treatment of the property, the Applicant immediately arrange for suitably qualified tradesperson/s to attend at the property to carry out repairs to the property in order to prevent further infestation by birds or other vermin. (10) The Respondent must reimburse the Applicant for all of its costs incurred in carrying out these orders. 2. These orders were entered on 16 August 2004, being signed by the Registrar and sealed with the seal of the Court (see Pt 15 r 4 of the Land and Environment Court Rules 1996). 3. The orders were made consequent upon class 4 proceedings commenced on 2 April 2004 by the applicant, Woollahra Municipal Council ("the Council"), against the respondent in which a substantive order was sought as follows: (1) An order that the Respondent complies forthwith with an order issued by the Council pursuant to section 124 of the Local Government Act 1993 on 30 April 2003 (annexed and marked "A"). 4. The order referred to in paragraph 1 of the class 4 application was given by the Council to the respondent in the respondent's capacity as the owner of premises known as 86 Queen Street, Woollahra, being lot 63 in deposited plan 658391. The order was given under s 124 of the Local Government Act 1993 ("the LG Act") which provides that: A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. 5. Item 21 of the table to s 124 is in the following terms: To do what? In what circumstances? To whom? 21 To do or refrain from doing such things as are specified in the order to ensure that land is, or premises are, placed or kept in a safe or healthy condition. The land or premises are not in a safe or healthy condition. Owner or occupier of land or premises. 6. Failure to comply with an order under s 124 is a breach of the LG Act (see ss 672(a) and (b)(ii) and 674(1)). Section 678 of the LG Act empowers councils to do things necessary or convenient to give effect to the terms of an order under s 124 if a person fails to comply with the terms of that order. Section 678 provides that: 678 Failure to comply with order—carrying out of work by the council (1) If a person fails to comply with the terms of an order given to the person under Part 2 of Chapter 7, the council may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order. (2) If the council gives effect to an order by demolishing a building, the council: (a) may remove any materials concerned, and (b) may sell the materials, unless the expenses of the council in giving effect to the terms of the order are paid to it within 14 days after removal of the materials. (3) If the proceeds of such a sale exceed the expenses incurred by the council in relation to the demolition and the sale, the council: (a) may deduct out of the proceeds of the sale an amount equal to those expenses, and (b) must pay the surplus to the owner on demand. (4) If the proceeds of sale do not exceed those expenses, the council: (a) may retain the proceeds, and (b) may recover the deficiency (if any) together with its costs of recovery from the owner as a debt. (5) Materials removed that are not saleable may be destroyed or otherwise disposed of. (6) Any expenses incurred by the council under this section (less the proceeds, if any, of any sale under this section) together with all its associated costs may be recovered by the council in any court of competent jurisdiction as a debt due to the council by the person concerned. (7) Nothing in subsection (3), (4) or (6) affects the owner's right to recover any amount from any lessee or other person liable for the expenses of repairs. (8) A reference in subsection (4) or (6) to costs is a reference to costs incurred by the council in seeking to recover the deficiency or expenses otherwise than by proceedings in a court, but nothing in this section prevents the council from receiving costs as between party and party in respect of those proceedings. (9) A council may exercise its functions under this section irrespective of whether the person concerned has been prosecuted for an offence under section 628. (10) In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person's failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council's functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings. 7. On 25 August 2005, the Council filed in the proceedings a notice of motion in which the Council seeks the following orders: (1) That pursuant to order 10 of the Orders of this Honourable Court dated 16 August 2004 (the "Orders"), the Respondent pay the Applicant the amount of $65,437.74, being the costs incurred by the Applicant in carrying out the Orders. (2) That the Respondent pay the Applicant's costs of this Notice of Motion. (3) Such further or other costs as this Honourable Court considers appropriate. 8. The notice of motion is supported by an affidavit sworn by Michael Edward Dean, solicitor, which refers to and annexes a series of invoices and receipts for payment of those invoices. The invoices and receipts show that the Council expended a total of $65,437.74 (inclusive of GST) in complying with the orders of the Court made on 16 August 2004. The affidavit also includes an invoice from the Council to the respondent dated 1 March 2005 seeking payment of the sum of $65,437.74 within 28 days from the date of the invoice. In para 7 of the affidavit, Mr Dean states that, as at the date of swearing the affidavit, no payments have been made by or on behalf of the respondent to the Council in response to that invoice. Submissions 9. The Council accepts that the orders of 16 August 2004 are final orders. The Council submits that its notice of motion of 25 August 2005 does not seek to set aside or vary those final orders but, rather, seeks a further order by way of implementation or working out of paragraph 10 of the orders ("order 10"). Hence, the Council submits that Pt 15 r 9 of the Land and Environment Court Rules 1996 is inapplicable. Part 15 r 9 of the Land and Environment Court Rules 1996 provides that: 9 Setting aside, varying order The Court, may, on terms, set aside or vary an order in any of the following cases: (a) if the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default, and whether or not the absent party had notice of the motion for the order, (b) if notice of motion for the setting aside or variation is filed before the signing and filing of the minute of the order under rule 4, (c) if the order was obtained by fraud, (d) if the order is interlocutory, (e) if the order does not reflect the intention of the Court, (f) if the party in whose favour the order was made consents. 10. The steps in the Council's argument are as follows: (1) The orders of 16 August 2004 were made pursuant to s 678 of the Local Government Act 1993. (2) Section 678(6) of the Local Government Act 1993 is consequential upon the exercise of power under s 678(1). (3) The notice of motion of 25 August 2005 does not seek to set aside or vary order 10, but seeks the making of a further order relating to the enforcement or implementation of order 10. (4) The Court has jurisdiction to make such an order either generally or by reason of s 16(1A) of the Land and Environment Court Act 1979. (5) There is discretion whether or not to make such an order. The Council accepts that the jurisdiction of this Court would not be exclusive, and that the Council could take proceedings in another court to recover the costs incurred by it in complying with the orders of the Court. In this case, the Council submits that the public interest in avoiding multiple proceedings favours the making of the order sought by this Court. 11. The Council does not now seek to recover the total amount that it expended ($65,437.74) as it is willing to waive the GST component ($5,948.89). Hence, the total claim by the Council against the respondent is $59,488.85. 12. The respondent (who did not have legal representation) made the following submissions: (1) The total claim by the Council is patently excessive. The respondent had obtained a quote for the carrying out of the work in the sum of $2,000. The Council had led her to believe that the carrying out of the work by the Council may be less, and not more, expensive than her own quote. (2) There are inconsistencies and anomalies in the invoices. For example, the Court order was dated 16 August 2004, yet an invoice from Stainaway records a total of 30 hours of work for the date 13 August 2004. (3) The Council had told the respondent that she would be allowed to return to her home after two days when, in fact, she was not permitted to return for some 15 days. (4) The respondent had no confidence in the contractors retained by the Council. On returning to her home, she found that various fixtures and fittings were either broken or had been removed without her permission and that many personal items had been removed or were missing. (5) The respondent did not believe that the work had been carried out or completed in accordance with the Court's orders. Principles 13. The Council acknowledges that if the order it seeks in the notice of motion involves the setting aside or varying of the 16 August 2004 orders, then the circumstances in Pt 15 r 9 are not applicable to enable the order to be set aside or varied. 14. This reflects the general principle expressed in Bailey v Marinoff (1971) 125 CLR 529 at 530, where Barwick CJ stated: Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. 15. This principle was reaffirmed in DJL v The Central Authority (2000) 201 CLR 226. 16. For reasons which I will expand upon below, the question whether Pt 15 r 9 is an exhaustive statement of the jurisdiction of this Court to set aside or vary an order does not arise in the present matter (see National Parks and Wildlife Service and Another v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 581, Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 27 – 29, Memel Holdings Pty Ltd v Pittwater Council [2000] NSWLEC 227 and Woollahra Municipal Council v Ferella [2005] NSWLEC 402 and, in contrast, Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438). 17. In Logwon, Sheller JA (at 28 – 29) cited with approval the words of Brennan J in Permanent Trustee Co (Canberra) Ltd (As Executor of Estate of Andrews) v Stocks and Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45 at 48 – namely, that the exceptions to the general rule that a perfected judgment cannot be recalled or varied may be classified as: … those which are founded upon the inherent jurisdiction of the court to ensure that its procedures do not effect injustice; those which are authorised by statute; and those which override the general rule in order to give relief where the judgment is obtained by fraud or by an agreement which is void or voidable 18. The Council submits that, just as its application is not subject to Part 15 r 9, it also does not enliven these considerations because the Court, having made a final order, retains jurisdiction to make more specific to implement that order. In this regard, the Council refers to the decision of McLelland J in Phillips v Walsh (1990) 20 NSWLR 206. 19. In Phillips v Walsh, a final order had been made, including an order that each party supply to the other a full accounting of all assets. Subsequently, the plaintiff filed a motion seeking orders that the defendant file accounts verified by affidavit of receipt and disbursements, a statement of assets and liabilities and related matters. McLelland J, at 209 - 210, observed that: The question whether any particular application can properly be made in existing proceedings is a matter to be determined according to general law principles as modified by any relevant statutory provision. One such principle of the general law is that when proceedings have been disposed of by a final order which has been entered, the proceedings are at an end and cannot be revived: see generally Bailey v Marinoff (1971) 125 CLR 529 ; Gamser v Nominal Defendant (1977) 136 CLR 145 ; and FAI General Insurance Co Limited v Southern Cross Exploration NL (1988) 165 CLR 268 . There are a number of exceptions and qualifications to this principle but none that has any relevance to the present application, unless it be that subsequent to a final order application may be made for the purpose of dealing with a matter involved in, or arising in the course of, working out that order; for example, by making more specific provision for its implementation or by modifying its operation to take account of some subsequent change of circumstance or by enforcing it. This exception or qualification does not, however, extend to an application made for the purpose of giving substantive relief not sought in the statement of claim or which is substantially different to that given by the final order: see generally Haviland v McLeary (1894) 15 LR (NSW) (Eq) 22; 10 WN (NSW) 146; Poisson & Woods v Robertson & Turvey (1902) 86 LT 302; 50 WR 260; 46 Sol Jo 196; Dowdle v Hillier (1949) 66 WN (NSW) 155; Re Porteous [1949] VLR 383; [1950] ALR 89; Cristel v Cristel [1951] 2 KB 725 and Re Scott (1964) 82 WN (Pt 1) (NSW) 313; [1964 – 5] NSWR 1636. 20. The importance of the qualification expressed by McLelland J (that such an order may not be made for the purpose of giving substantive relief not sought in the statement of claim or which is substantially different to that given by the final order) can be seen in a number of the decisions to which he referred. 21. In Dowdle v Hillier (1949) 66 WN (NSW) 155 at 156, Roper CJ in Eq. dismissed a notice of motion for an order that a certain sum be paid and said that: What is sought here, in effect, is an amendment of the decree… The order sought would have the effect, not of dealing with a matter involved in or arising in the course of working out the decree, but of varying the decree and its effect, so as to give relief which is not even asked for in the statement of claim. 22. Roper CJ in Eq. also observed that, if he had discretion to make the order (which he did not), then certain considerations weighed against the making of the order. The making of the amendment, and the making of an order in its terms were opposed by the defendant on the ground that the amendment sought a purely common law remedy to give which in this suit would effect an injustice because the plaintiff would then have an immediate judgment which would be enforced, in particular by bankruptcy proceedings, and the enforcement of it would or might deprive the defendant of the possibility of obtaining effective relief in her common law action … What the plaintiff is now seeking is in substance a purely legal remedy, namely, a judgment for a simple contract debt. If the plaintiff had sought that remedy at law, the defendant would have been entitled to set up the claim, which she made in the counter-claim and is now pursuing at law, by way of cross-action, and the plaintiff is entitled to set up the claim which he is now making by way of set-off in the defendant's present common law action. 23. In Cristel v Cristel [1951] 2 KB 725 an order had been made for the delivery up of possession of premises, which order had been stayed until suitable alternative accommodation (described as a two or three bedroom house or bungalow in the Harrow area) had been provided. The plaintiff, pursuant to liberty to apply, sought to vary that order by inserting the words "or flat" after the words "or bungalow". At 728, Somervell LJ said that "liberty to apply" will be implied: … where the order drawn up is one which requires working out, and the working out involves matters on which it may be necessary to obtain the decision of the court. Prima facie, certainly, it does not entitle people to come and ask that the order itself shall be varied. 24. At 730, Somervell LJ held that what the plaintiff sought in Cristel v Cristel was "a plain alteration of what had been agreed". 25. In Re Scott (1964) 82 WN (Pt 1) (NSW) 313; [1964 – 5] NSWR 1636, McLelland CJ in Eq. at 315 reiterated the applicable principle (that the Court may deal with matters that arise in the course of working out the order, but is not able to make a substantially different order). His Honour held that the applicant in that matter was not entitled to apply for increased benefits pursuant to the statutory provision. 26. With respect to the operation of s 16(1A) of the Land and Environment Court Act 1979, the Council relied upon the decision of the Court of Appeal in Scharer v State of New South Wales (2001) 116 LGERA 217. As I understand it, the Council submits that, whether or not there is an inherent or implied jurisdiction in the Court to make further orders involved in or arising in the course of working out a final order, there is ancillary jurisdiction to do so by reference to s 16(1A). Such a matter, the Council submits, would be seen as "ancillary", "incidental", "accessory" or "auxiliary" to the matter within jurisdiction consistent with the principles identified in Scharer (and, I note, referred to by Pearlman J in NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403 at 411 – 413, where her Honour surveys the relevant authorities). Conclusion 27. For present purposes, I am prepared to accept the Council's submissions that, first, application may be made for the purpose of dealing with a matter involved in or arising in the course of working out a final order, pursuant to either the inherent jurisdiction of the Court or s 16(1A) of the Land and Environment Court Act 1979 and, secondly, that such an application is not subject to Part 15 r 9. The authorities to which I have referred above, however, disclose that this exception or qualification to the general principle expressed in Bailey v Marinoff does not extend to any application made for the purpose of giving substantive relief not sought in the originating process or which is substantially different from that given in the final order. 28. I consider that the order that the Council now seeks (that the respondent pay the applicant the amount of $59,488.85), in substance, would vary order 10 of the orders made by this Court on 16 August 2004. In particular: (1) Nothing in the terms of order 10 contemplates the making of any further order. (2) Nothing in order 10 suggests that there is any matter or issue that requires the further "working out" of that order; order 10 is complete on its face. (3) The ultimate quantification of the Council's rights to reimbursement could require determination of a number of substantive issues that could not readily be seen as falling within the scope of the exception with respect to final orders discussed in Phillips v Walsh . Those issues might include: - (i) whether the costs incurred by the Council in carrying out the orders were reasonably incurred in all of the circumstances. In my view, order 10 could not be construed as extending to costs incurred unreasonably; (ii) whether the respondent may be able to rely upon any defence or counter-claim such as by way of set-off or by reference to s 678(7) of the Local Government Act 1993 (which provides that nothing in subsection (3), (4) or (6) of s 678 affects the owner's right to recover any amount from any lessee or other person liable for the expenses of repairs). These potential and unresolved issues disclose that the order sought by the Council cannot properly be described as an order working out or implementing order 10. 29. I consider that the application made by the Council does not fit within the principle discussed in Phillips v Walsh. Hence, the Council seeks to vary a final order in circumstances other than those prescribed by Pt 15 r 9 of the Land and Environment Court Rules 1996. The Council, as appropriate on the facts of this case, does not seek to support its application by reference to any other exception that might apply (assuming the inherent or implied jurisdiction of this Court to ensure that its procedures do not work any injustice). These considerations necessarily require that the Council's notice of motion be dismissed. 30. If, contrary to the above, I have discretion to make the order which the Council seeks, then it is also appropriate that I observe that there are considerations in this matter which weigh against the making of any order. In particular, the respondent has referred to a number of circumstances which the respondent appears to believe were not covered by the 16 August 2004 orders (see, in particular, orders 4, 5, 6, and 7). Whether or not that belief is well founded is not presently to the point. Nor is it to the point that the Council may be entitled to recover the full amount which it contends represents reimbursement as contemplated by order 10. The point is that, a final order having been made by this Court, jurisdiction to make any further order in this case, if it exists at all, must be founded on the (limited) exception discussed in Phillips v Walsh. Yet the quantification of the Council's rights, as noted above, may call for resolution of issues beyond the scope of a mere working out or implementation of a final order. 31. This concern is reinforced by the Council's acknowledgement that it can enforce its rights in another court where, presumably, the respondent may raise any statutory (for example, s 678(7) of the Local Government Act 1993), common law or equitable defence (s 6 of the Law Reform (Law and Equity) Act 1972 provides that every inferior Court shall in every proceeding before it give such and the like effect to every ground of defence, equitable or legal, in as full and ample a manner as might and ought be done in the like case by the Supreme Court under the Supreme Court Act 1970). I did not understand the Council to submit that s 16(1A) of the Land and Environment Court Act 1979 enables this Court to deal with any such legal or equitable defence in circumstances where a final order has already been made and where the Council must bring its application within the exception discussed in Phillips v Walsh to found jurisdiction. 32. Consistent with the reasoning of Roper CJ in Eq. in Dowdle v Hillier, it seems to me that, for the reasons I have given above, there is a risk that an injustice may be worked against the respondent if the order is made. In these circumstances, if I had discretion as to the making of the order sought by the Council, I would decline to make the order. 33. In the result, I order that the applicant's notice of motion dated 25 August 2005 be dismissed. Costs may be argued. **************************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.