Woollahra Municipal Council v Tilley [2010] NSWLEC 75

Land and Environment Court of New South Wales

CITATION : Woollahra Municipal Council v Tilley [2010] NSWLEC 75

APPLICANT Woollahra Municipal Council PARTIES : RESPONDENT Adam Thomas Tilley

FILE NUMBER(S) : 40150 of 2010

CORAM: Pepper J

KEY ISSUES: COSTS :- whether the usual rule that costs follow the event applicable - whether costs payable as agreed or assessed or as a fixed sum - respondent to pay applicant's costs fixed in the sum of $4,500

LEGISLATION CITED: Civil Procedure Act 2005 ss 56 and 98

CASES CITED: Puruse Pty Limited v Council of the City of Sydney [2009] NSWLEC 163

DATES OF HEARING: 14 May 2010

EX TEMPORE JUDGMENT DATE : 14 May 2010

APPLICANT Mr A Hudson (solicitor) SOLICITORS Wilshire Webb Staunton Beattie LEGAL REPRESENTATIVES: RESPONDENT Mr A Tilley (in person) SOLICITORS N/A

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PEPPER J

14 May 2010

40150 of 2010 Woollahra Municipal Council -v- Adam Thomas Tilley

EX TEMPORE JUDGMENT Introduction 1 HER HONOUR: This is an application by the council for an order for costs payable by the respondent fixed in the sum of $5,800. 2 The application for costs arises out of the discontinuance of Class 4 proceedings commenced by the council against Mr Thomas Tilley. 3 Both the order for costs and any order that it be payable in a fixed sum is opposed by Mr Tilley, who appeared unrepresented before the Court. Background 4 By summons filed 5 March 2010, the council sought an order that Mr Tilley complete works to waterproof a party wall dividing two properties in Paddington and that the wood fencing and associated supporting structures dividing the rear of the properties be removed and that appropriate fencing along the boundary of the two properties be reinstated in order to prevent the excavation works being carried out on one of the properties from becoming dangerous. The works were carried out pursuant to a development consent granted by the council on 2 February 2006. 5 On 23 June 2009, the council issued an order in terms of a previously issued Notice of Intention with respect to adequate measures being put into place to support the side boundary fence between the properties. 6 On 15 October 2009, the council issued a further Notice of Intention in respect of the fencing and the waterproofing of the adjoining property. 7 Between 15 October and 23 December 2009, conversations took place between the council and Mr Tilley wherein Mr Tilley stated that he would carry out the required works. The works, however, were not carried out. 8 On 23 December 2009, the council's solicitors wrote to Mr Tilley indicating that if the matters referred to in the various Notices of Intention and a previous order made by the council were not completed to the council's satisfaction within 21 days from the date of the letter, it would, without further notice, commence Class 4 proceedings in this Court. 9 Mr Tilley stated that because of the Christmas and New Year vacation he did not in fact receive the 23 December 2009 letter until the week commencing 19 January 2010. 10 Between 19 January and 5 March 2010, further discussions ensued between Mr Tilley and the council wherein, again, Mr Tilley stated that he would complete the works. However, as before, the completion did not occur. Thus, on 5 March 2010 the council filed the summons in this Court. 11 However, the works were completed by Mr Tilley prior to the first return date of the matter on 26 March 2010. On that day, final orders were filed disposing of the proceedings subject to the issue of costs. 12 At no point has Mr Tilley ever accepted that the works were necessary. Mr Tilley Must Pay the Council's Costs 13 The council seeks an order that costs be paid by Mr Tilley on the basis that costs generally follow the event in Class 4 proceedings and that there has been no disentitling conduct engaged in by the council, or indeed is any other discretionary factor present that would preclude its recovery of costs, why the usual rule ought not be followed. 14 Mr Tilley, however, opposes the order on the basis that, first, the works were not required, and second, once proceedings were commenced he acted expeditiously in completing the works thereby saving the parties time and costs. 15 While Mr Tilley's actions once the proceedings were instituted cannot be criticised, the fact remains that were it not for the commencement of those proceedings, it is highly unlikely that the work would have been completed at all, or at the very least, in the timely manner in which they were ultimately carried out. 16 The fact also remains that Mr Tilley could have, in light of his refusal to accept the necessity of the works, taken the risk of contesting the Class 4 proceedings and had he done so successfully, then in all likelihood he would have recovered his costs from the council. That he elected not to do so was entirely a matter for him, but this did not have the effect of precluding the council from seeking its costs upon discontinuance. 17 In my view, Mr Tilley was given ample notice of the council's intention to commence proceedings if the works were not completed within the time frame it had given him. While there was blameless delay in Mr Tilley receiving the 23 December 2009 letter from the council, irrespective of the 21 day period stipulated in the letter, upon his return on or about 19 January 2010, Mr Tilley had an additional three weeks within which the works could have been completed prior to proceedings being instituted. It was his decision not to complete the works that has caused, in my view, the costs consequences about which he now complains. 18 In the circumstances, and given that the council has not engaged in any disentitling conduct, to the contrary it gave Mr Tilley ample opportunity within which to complete the works to its satisfaction, the appropriate order (s 98 of the Civil Procedure Act 2005 ("CPA")) is that Mr Tilley pay the council's costs of the proceedings. Should the Costs Ordered Be In a Fixed Sum 19 The council seeks an order that the costs be payable as a fixed sum. This is because the quantum of costs at issue is sufficiently small that assessing these costs would give rise to further and unnecessary delay and expense in the proceedings. 20 In support, the council relied on an affidavit of Mr Anthony Hudson dated 14 May 2010, which annexed various tax invoices and accounts issued to to the council from its solicitors, Wilshire Webb Staunton Beattie. 21 In his affidavit Mr Hudson deposes that the total costs to be paid by the council to its solicitors is $6,679.40. It is Mr Hudson's opinion that it would be reasonable to expect a recovery of at least 85% of these costs upon assessment. Accordingly, 85% of the total cost, inclusive of disbursements, is $5,875.90. 22 Mr Tilley initially sought an order that, alternatively the costs be payable as agreed or assessed. He no doubt did so because, as he pointed out to the Court, the total cost of having the building works completed was approximately $2,700, whereas the costs now claimed by the council were more than double this sum. 23 Regrettably, however, such is the cost of litigation. Having reviewed the invoices attached to Mr Hudson's affidavit, leaving aside the question of what percentage of costs would be recoverable were the costs assessed, the costs claimed do not appear unreasonable. 24 After further discussion before the Court, Mr Hudson, on behalf of the council, sought and received further instructions that the council would be willing to accept a figure fixed in the sum of $4,500 as total payment for its costs. This amount equated to approximately 65% of its unassessed costs. Mr Tilley ultimately agreed that it was appropriate to fix costs in this amount rather than pursue assessment. 25 There is no doubt that the Court has the power to order costs fixed as a gross sum as an alternative to ordering costs to be agreed or assessed (see s 98(4)(c) of the CPA). In Puruse Pty Limited v Council of the City of Sydney [2009] NSWLEC 163 (at [83]-[84]), I set out the principles applicable to the exercise of the Court's discretion to make an award of costs fixed in a specific sum. I repeat them here. Conclusion 26 In the circumstances of this case, I am satisfied that it is appropriate to exercise my discretion to make an award of costs fixed in the specific sum agreed by the parties of $4,500. I do so because: (a) the quantum of costs payable in these proceedings does not warrant and will avoid the expense, delay and aggravation involved in any assessment process;