Canterbury City Council v Abdo [2008] NSWLEC 275

Land and Environment Court of New South Wales

CITATION : Canterbury City Council v Abdo [2008] NSWLEC 275

APPLICANT Canterbury City Council PARTIES : RESPONDENT Joanne Abdo

FILE NUMBER(S) : 40198 of 2008

CORAM: Preston CJ

KEY ISSUES: Civil Enforcement :- breach of planning or environmental laws by use of premises - alleged wrongdoer vacated premises and ceased use - no utility in further prosecution of proceedings - leave to discontinue proceedings - costs - no order as to costs

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

Fordyce v Fordham (2006) 67 NSWLR 497 CASES CITED: Kiama Council v Grant (2006) 143 LGERA 441 Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622

DATES OF HEARING: 18 September 2008

EX TEMPORE JUDGMENT DATE : 18 September 2008

APPLICANT Mr A Simpson (solicitor) SOLICITORS LEGAL REPRESENTATIVES: Pike Pike & Fenwick

RESPONDENT No appearance

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

18 SEPTEMBER 2008

40198 OF 2008

CANTERBURY CITY COUNCIL V JOANNE ABDO

JUDGMENT

1 HIS HONOUR: The applicant, Canterbury City Council commenced Class 4 proceedings to remedy or restrain alleged breaches of the Local Government Act 1993 and the Environmental Planning and Assessment Act 1979 by the respondent in relation to her mixed business and fruit shop at Shops 1 and 2, 132 Haldon Street, Lakemba. The applicant alleged that the respondent was storing and displaying for sale goods outside the shops, on the footpath of Haldon Street and in the shopping arcade running from Haldon Street to a car park at the rear. The applicant alleged that such conduct was in breach of conditions of the development consent that had been granted under the Environmental Planning and Assessment Act 1979 by the Council on 7 June 2007 and, also, was in breach of conditions of a footway approval that had been granted under the Local Government Act 1993 by the Council on 13 June 2007. 2 The Class 4 proceedings were commenced on 4 March 2008 and the originating process was served on the respondent on 6 March 2008. The matter had a chequered history in the Court thereafter. The respondent was never legally represented but rather was self-represented. She had a series of medical issues, including being hospitalised, and various court attendances and hearing dates were vacated or adjourned. By May 2008, the respondent had advised the applicant that she was in the process of selling her business. 3 The first sale apparently floundered with the respondent advising the applicant in July 2008 that the purchaser had refused to settle, but nevertheless the respondent was still marketing the business for sale. However, by August 2008, the respondent had been successful in selling her business and had vacated the premises. 4 As a consequence, all use of the shops by the respondent ceased and the respondent could no longer be, if she had been, in breach of either the Environmental Planning and Assessment Act 1979 or the Local Government Act 1993. As a consequence, the applicant advised the respondent and the Court that it would no longer press to have the Court determine its application that the respondent was in breach of the Environmental Planning and Assessment Act 1979 and the Local Government Act 1993, but nevertheless the applicant would still apply for an order that the respondent pay the applicant's costs of the proceedings to date. The Court fixed today for hearing of the applicant's application for an order for costs. 5 On the matter coming on for hearing before me today, the applicant appeared by its solicitor but there was no appearance for the respondent. The respondent, however, had been advised by the applicant's solicitor, both in writing and by telephone, that the matter was listed for hearing today. 6 I inquired of the applicant's solicitor what was to be the fate of the substantive proceedings. Did the applicant wish to proceed to a hearing of the application for substantive relief or did it wish to discontinue the proceedings? The reason I inquired is that an order as to costs of the proceedings is consequential on the fate of the substantive proceedings. Different court rules govern orders for costs, depending on the fate of the substantive proceedings. For example, if the proceedings for substantive relief are heard and determined, and judgment is delivered, Pt 42 r 42.1 of the Uniform Civil Procedure Rules 2005 provides that, ordinarily, costs will follow the event. However, if the proceedings for substantive relief are discontinued, a different rule applies, Pt 42 r 42.19 of the Uniform Civil Procedure Rules 2005, which provides that unless the court otherwise orders, the plaintiff who discontinues should pay the defendant's costs of the proceedings up to the date of discontinuance. 7 After a brief adjournment to seek instructions, the applicant's solicitor sought leave of the Court to discontinue the proceedings against the respondent under Pt 12 r 12.1(1)(b) of the Uniform Civil Procedure Rules 2005. The basis for seeking leave was that there was no longer any utility in determining the application for substantive relief as the respondent had sold the business and vacated premises and therefore could no longer be in breach of the Environmental Planning and Assessment Act 1979 and the Local Government Act 1993. 8 I consider it is appropriate in these circumstances to grant the applicant leave to discontinue the proceedings against the respondent. 9 The applicant then sought an order that the respondent pay the applicant's costs of the proceedings to date. The applicant submits that it is appropriate in the circumstances of this case that the court order otherwise than what Pt 42 r 42.19(2) of the Uniform Civil Procedure Rules 2005 provides, which is that the applicant who discontinues should pay the respondent's costs of the proceedings to the date of discontinuance. 10 The applicant read various affidavits of officers of the Council and of the applicant's solicitor which chronicled the history of use of the shops by the respondent. That evidence collectively shows continued use of part of the footpath and part of the arcade for storage and display for sale of goods. 11 The applicant's solicitor wrote a letter before action, on 18 February 2008, calling on the respondent to cease what was alleged to be unauthorised storage and display of goods on the footpath and arcade by 22 February 2008 and advising that failure to do so may result in the applicant commencing proceedings in the Land and Environment Court to remedy or restrain breaches of the Environmental Planning and Assessment Act 1979 and the Local Government Act 1993. 12 The respondent did not reply to this letter and furthermore continued to store and display for sale goods on parts of the footpath and parts of the arcade. 13 Accordingly, the applicant commenced these proceedings on 4 March 2008. Afterwards, the respondent continued to store and display for sale goods on parts of the footpath and parts of the arcade, although the volume and area used seemed to change from time to time, until August 2008 when the respondent vacated the premises on the sale of her business. 14 I am satisfied that the applicant acted reasonably in commencing these proceedings and in maintaining the action until the point of time when the respondent vacated the premises on the sale of her business. Furthermore, it was reasonable for the applicant to no longer press its application for substantive relief thereafter because of the lack of utility in so doing. 15 In these circumstances, I consider it appropriate that the Council should not have to pay the respondent's costs of the proceedings and hence it is appropriate that the court would order otherwise than as provided under Pt 42 r 42.19(2) of the Uniform Civil Procedure Rules 2005. 16 The circumstances in this case are similar to those dealt with by the Court of Appeal in Fordyce v Fordham (2006) 67 NSWLR 497. There, the majority of the Court of Appeal held that the default orders in Pt 42 r 42.19 and r 42.20 do not create a presumption that the plaintiff ought to pay the costs of proceedings. They are relevant, but not determinative considerations. Where substantive proceedings do not proceed to final determination, other considerations include whether the parties acted reasonably in commencing and defending the proceedings and whether the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile: at 498[1], 502[27]-[28] and 512[84]. In that case, the Court of Appeal considered that the appropriate order was that each party pay her own costs. 17 However, I do not consider that a case has been made out for the Court to go further than this and order that the respondent pay the applicant's costs of the proceedings to date. There has been no hearing and determination of the applicant's application for substantive relief, hence the event, in respect of which costs should follow, has not occurred. The Court is, therefore, necessarily deprived of the factor that usually determines whether or how it will make a costs order: see Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at 624. It is not appropriate that the Court embark on a final hearing and determine the application for substantive relief in order to determine the costs application. 18 Moreover, the respondent has not given any undertaking to the Court or submitted to the Court making orders against her substantially in terms of or to the effect claimed by the applicant's application for substantive relief. In short, there has been no surrender by the respondent to the applicant: see Kiama Council v Grant (2006) 143 LGERA 441 at 457 [80]. 19 In these circumstances, the proper order is that the Court make no order as to the costs of the proceedings. 20 As the respondent has not appeared today on this application for costs, and hence cannot have incurred any legal costs, there should also be no order as to the costs of this application for costs. 21 The orders of the court are: