Land and Environment Court of New South Wales CITATION : Bennett v Leichhardt Municipal Council [2008] NSWLEC 1359 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Craig Bennett PARTIES : RESPONDENT Leichhardt Municipal Council FILE NUMBER(S) : 40470 of 2008 CORAM: Registrar Dixon KEY ISSUES: Costs :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Foukkare v Angreb Pty Ltd [2006] NSWCA335. Reid v Shearan [2002] NSWSC 902. DATES OF HEARING: 03/09/200 DATE OF JUDGMENT: 10 September 2008 APPLICANT Mr Teh, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Ms S. Duggan, SC instructed by Ms Walsh of Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Registrar Dixon 10 September 2008 40470 of 2008 Craig Bennett v Leichhardt Council JUDGMENT 1 The applicant seeks an order for costs of and incidental to these proceedings. The respondent opposes such an order and submits instead that each party should pay its own costs of the proceedings. 2 The applicant is present in Court and represented by Mr Teh (the beneficial owner) of the property at 12 Rosser St Rozelle (the subject site). The respondent is represented by Ms Duggan of Counsel instructed by Ms Walsh and Ms Lyons. 3 The applicant relies on the notice of motion dated 16 July 2008 and the affidavit evidence of: a. Eddy Neumann dated 15 July 2008 b. Anthony Melinz dated 19 August 2008 c. Craig Bennett dated 12 May 2008 and 22 August 2008 d. Steven Ten dated 21 August 2008 4 The respondent does not take objection to the substance or form of the applicant's affidavits subject to the Court attaching appropriate weight. 5 The respondent relies on the affidavit evidence of: Mr Ian Betts the respondents' senior assessment officer dated 14 August 2008 and 28 August 2008. Background 6 The class 4 proceeding were filed on 13 May 2008 and discontinued by consent (save as to costs) on 10 July 2008. 7 The issue before the Court in the class 4 proceedings was whether the applicant had carried out works in time to commence the consent in respect of DA D/2001/593 8 The proceedings were short lived. 9 At the first directions hearing on 6 June 2008 the Court fixed a timetable for pleadings and evidence. 10 The applicant filed its points of claim and three affidavits in support of its case in accordance with the agreed timetable. 11 At the next directions hearing on 4 July 2008 the respondent conceded that the development consent had not lapsed. 12 A notice of discontinuance was executed by both parties on about 7 or 8 July 2008 and filed with the Court on 10 July 2008. 13 This application for costs filed by the applicant is the only remaining issue in the proceedings. Evidence and Submissions 14 The respondent says it relied on the affidavit evidence filed by the applicant in these proceedings to determine that the consent had been lawfully commenced and had not lapsed. 15 The respondent submits that prior to the affidavit evidence being filed it did not have sufficient evidence to determine the lawful commencement of the consent. 16 The respondent submits that it agreed to the discontinuance of the class 4 proceedings within 7 days of the second directions hearing. 17 The applicant submits that the respondents' senior assessment officer Ian Betts failed to inspect the works that lawfully commenced the consent. 18 The respondent relies on various emails and letters which are annexed to the affidavit of Ian Betts dated 14 August 2008 which records the respondents' attempts to inspect the applicant's works to establish lawful commencement of the consent. 19 The evidence refers to a particular inspection by Ian Betts on 31 October 2008 and discussions between Mr Teh and Ian Betts on 31 October 2008 and 7 November 2007. 20 The applicant's evidence details a conversation between Mr Teh and Ian Betts on 7 November 2007 when Ian Betts asked for further access to inspect the works, but Mr Teh's affidavit dated 21 August 2008 at paragraph 10 details that Mr Teh denied Ian Betts access on that occasion and notes at paragraph 11 Mr Teh advised Ian Betts he was getting legal advise and would get back to him. 21 Both parties evidence is that the applicant did not allow Ian Betts an opportunity to inspect the property on 7 November 2008. 22 The respondent issued a letter to the applicant dated 31 October 2007 advising that the consent had lapsed. (See annexure ST-A of the affidavit of Mr Teh dated 21 August 2008.) 23 The evidence is that on 25 January 2008 the applicant through its architect Mr Melinz lodged a section 82A application seeking a review of the respondent's decision that the consent had lapsed. 24 The evidence is that Ian Betts advised the applicant's architect Mr Melinz that a section 82A application could not be used to review the respondent's decision that the consent had lapsed. 25 At paragraph 9 of Mr Melinz's affidavit dated 19 August 2008 Ian Betts says he advised the respondent of the documentation he needed together with an inspection to prove the consent had been validly commenced. 26 On 10 March 2008 Mr Melinz says at paragraph 14 of his affidavit that he sent certain documentation to Ian Betts including a letter from the certifier Warwick Norris describing the extent of the works the applicant says commenced the consent. 27 Annexure "S" of the affidavit of Ian Betts dated 14 August 2008 is a copy of an email communication dated 4 April 2008 from Ian Betts to Mr Melinz advising that the further documentation provided by the applicant did not satisfy council that the consent has not lapsed. The email sets out in detail the deficiencies of documentation submitted and invites the applicant to contact the respondent for further information about the issue. 28 Annexure "T" of the affidavit of Ian Betts dated 14 August 2008 is an email from Ian Betts to Mr Melinz sent on Sunday 6 April 2008 at 8.14 pm about the lapsed consent issue and again inviting the applicant to contact the respondent. 29 The evidence certainly discloses a number of attempts by the respondent to advise the applicant what it needed to provide to evidence the consent has not lapsed. 30 The respondent submits the onus is always on an applicant to satisfy the respondent that works have been commenced within time to validly commence a development consent. The Law 31 The general costs rule in class 4 proceedings is that costs usually follow the event. The successful party will be awarded costs unless it appears to the court that some other order should be made. (Uniform Civil Procedure Rule (UCPR) 42.1) 32 However, in this matter there was no hearing of the class 4 proceedings. The applicant discontinued the proceedings with the consent of the respondent (except for costs) after the second directions hearing. 33 In the case of proceedings discontinued unless the court orders otherwise UCPR 42.19 applies and the applicant must pay the respondent's costs as at the date on which the notice of discontinuance was filed. 34 An applicant cannot usually apply to discontinue on terms that an order for costs is made out against a defendant: Foukkare v Angreb Pty Ltd [2006] NSWCA335. However, there are cases where such an order may be justified, despite judicial reluctance to explore costs issues in undetermined proceedings. These will include cases where the plaintiff has obtained practical success in the litigation Reid v Shearan [2002] NSWSC 902. 35 The case at hand is one where the applicant has had practical success. 36 The respondent has conceded the orders sought by the applicant and the applicant is now afforded an opportunity to pursuant its section 96 appeal. 37 However, a number of questions arise in the circumstances of this particular case: Why did the respondent not concede the lawful commencement earlier? 38 The evidence is that the respondent says it did not have the necessary documentation to evidence the lawful commencement of the consent. Why did the applicant need to commence proceedings for a declaration through the Court? 39 The evidence is that the respondent advised the applicant on or about 7 November 2007 that the matter did not need lawyers to sort it out. Furthermore, if the applicant had given the respondent relevant documentary evidence of the works and a further opportunity to inspect the property then in all probability the respondent would have determined that the consent was valid. Why did the applicant not show the respondent the works and relevant documentary evidence rather the go to the expense of detailing the works in the affidavit evidence? 40 The evidence provides no real insight as to why the applicant elected to pursue the matter in class 4 proceedings other than acting on advice from its lawyer and barrister and architect in respect of the issue. 41 The evidence discloses that the applicant was at times obstructive and rather than facilitating access for inspection ignored requests for inspection by the respondents' officer, Ian Betts. 42 It is submitted that the applicant was intimidated by the respondents' processes and unfamiliar with the proper avenues for review of the councils' decision that the consent had lapsed. However, the applicant was represented by an architect, a lawyer and barrister before the proceeding were commended. The applicant's evidence is that he paid approximately $21,000 dollars in legal fees and $5000 in architectural fees in respect of the class 4 proceedings. 43 The evidence does not explain why the applicant lodged the class 4 proceedings in this matter. It is fortunate for the applicant that the respondent does not pursue its costs of the class 4 proceedings particularly as the respondent was not given any notice of the proceedings until served with the class 4 appeal. 44 The usual order in class 4 would be that the applicant who discontinued pays the respondent's costs "unless the court orders otherwise". 45 The issue is whether the respondent by its conduct ought to be ordered to pay the applicant's legal costs. 46 On the evidence there is no reason or conduct by the respondent which supports the Court's exercise of it's discretion to order that the respondent pay the applicant's costs. 47 The evidence is that the respondent tried to resolve the issue in the usual way and was forced to defend the appeal ultimately filed by the applicant. 48 The respondent at the first opportunity agreed to discontinue the proceedings with no order as to costs. 49 The applicants evidence is that it has paid substantial costs in the Class 4 proceedings namely legal costs in the sum of $21,000 and architectural fees of $5,000. 50 The applicant is no longer legally represented and the council does not press its costs of the class 4 proceedings but rather submits that each pay its own costs. 51 In the circumstances the Court does not order that the applicant pay the respondents costs of the class 4 proceedings but rather that each party pay their own cost. 52 However, the respondent does seek an order that the applicant pay its costs of this notice of motion. The respondent comes to the hearing of this notice of motion represented by very experienced counsel and lawyers having been put to the expense of preparing two affidavits to defend the applicant's costs application. 53 The respondent's notice of motion has failed, therefore it is appropriate that the applicant pay the respondents' legal costs and disbursements of this notice of motion as agreed or assessed. 54 Accordingly, the Court makes the following orders: 1 That the applicant's notice of motion dated 16 July 2008 is dismissed. 2. That the applicant pay the respondent's costs and disbursements of this notice of motion as agreed or assessed. ___________________ Susan Dixon Registrar of the Court ljr 10/09/2008 - typographical errors - Paragraph(s) Par 49 -54 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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