Land and Environment Court of New South Wales CITATION : Holroyd City Council v Zeait [2009] NSWLEC 89 APPLICANT PARTIES : Holroyd City Council RESPONDENT Zeait, Rony FILE NUMBER(S) : 40028 of 2009 CORAM: Pain J KEY ISSUES: COSTS :- exercise of discretion whether to award costs to applicant - whether adequate or due notice given to respondent before proceedings commenced Local Government Act 1993 s 604 LEGISLATION CITED: Rural Lands Protection Act 1998 s 81 Valuation of Land Act 1916 s 71 Water Management Act 2000 CASES CITED: Homemakers Supacenta-Belrose Pty Ltd v Warringah Council (No 2) (2008) 158 LGERA 90 TEXTS CITED: Pearce D C and Geddes R S, Statutory Interpretation in Australia, 6th edition, LexisNexis Australia 2006 Garner B A and Black H C (Eds), Blacks Law Dictionary, 8th edition, West Group USA 2004 DATES OF HEARING: 29 May 2009 EX TEMPORE JUDGMENT DATE : 29 May 2009 APPLICANT Mr R Graham (solicitor) SOLICITOR LEGAL REPRESENTATIVES: HWL Ebsworth Lawyers RESPONDENT Mr E Takchi (solicitor) SOLICITOR Takchi & Associates JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 29 May 2009 40028 of 2009 Holroyd City Council v Zeait EX TEMPORE JUDGMENT 1 Her Honour: The parties have reached agreement about the orders that should be made in this Class 4 matter but for costs. The orders require that certain activities cease at 25 Henson Street, Merrylands. The Council seeks an order that its costs be paid as the orders made are essentially the same as those in the originating summons, as can be seen when these two documents are viewed together. 2 The Council relies on an affidavit of its solicitor, Mr Graham, that he personally delivered to the property the subject of the proceedings a letter dated 28 June 2008 in which the Council's solicitors set out the Council's concerns about unauthorised activity at the property and stated that enforcement action would be taken in the Land and Environment Court of NSW without further notice. The affidavit also attaches title searches of 25 Henson Street, Merrylands and business name searches of "Perfect Excavation" and "AAA Perfect Excavation and Demolition". The owner of these businesses is Mr Zeait, the Respondent, and the business address is shown as 15 Walker Street, Merrylands. 3 Proceedings were commenced by summons filed on 19 January 2009 together with affidavit evidence. An order for substituted service was made by the Court in March 2009 and the summons was affixed to the door of the property. It was then found by the tenant and given to the Respondent. The Respondent then engaged a solicitor and the matter was ultimately finalised as between the parties. 4 The Council argues that it has been largely successful and should therefore get its costs. Adequate notice of the proceedings was given by the letter from the Council's solicitor in June 2008. 5 The Respondent argues that there was not adequate notice given before proceedings were commenced. He has sworn an affidavit dated 28 May 2009 that the property at 25 Henson Street, Merrylands was tenanted and he did not reside there. Following purchase of that property in 2004 as an investment property he caused to be sent to the Council a Notice of Sale pursuant to the Local Government Act 1993 (s 604), the Valuation of Land Act 1916 (s 71), the Rural Lands Protection Act 1998 (s 81) and the Water Management Act 2000 which identified his address as 15 Walker Street, Merrylands. All rates and other notices from the Council have been sent to that address since then. He only became aware of the summons when his tenant handed him a copy of the summons at the end of March 2009. He has never received any notices or mail from the Council about these proceedings at 15 Walker Street, Merrylands. Nor has he received a telephone call, letter or visit from any officer of the Council in relation to the issues in the proceedings. He gave the summons to his solicitor and, after receiving legal advice, settled the proceedings. 6 The tenant Mr Green has also sworn an affidavit in which he states that no correspondence was received for Mr Zeait at 25 Henson Street, Merrylands. In these circumstances Mr Zeait states that he did not receive any notice from the Council of the proceedings until the summons was found by the tenant in March 2009. Finding 7 The issue that arises is whether the Council provided adequate notice of its intention to commence these proceedings. The definition of "adequate due notice" in Garner B A and Black H C (Eds), Blacks Law Dictionary, 8th edition, West Group USA 2004 is: adequate notice : see due notice due notice : Sufficient and proper notice that is intended to and likely to reach a particular person or the public; notice that is legally adequate given the particular circumstance 8 The parties have not been able to assist the Court with any relevant case law as to what constitutes adequate or due notice of the intention to commence litigation. It will depend on the circumstances of a particular matter. It is clearly desirable that defendants be given adequate notice of the intention to commence litigation (unless there is a need for urgent interlocutory relief). That enables negotiation to occur between parties hopefully to enable resolution of issues without coming to court, a highly desirable outcome in terms of reducing the burden of litigation in the community. I made comments to that effect in Homemakers Supacenta-Belrose Pty Ltd v Warringah Council and Anor (No 2) (2008) 158 LGERA 90 in the context of no notice of the commencement of proceedings being given in that matter. 9 The only notice of the intention to commence these proceedings, being the letter dated 18 June 2008 of the Council's solicitor, was delivered to the property the subject of the proceedings. It was not received by Mr Zeait or his tenant according to the evidence filed so that he did not have any notice of the proceedings. I should note I do not consider there is necessarily any inconsistency in the evidence filed by the parties. It is possible for Mr Graham to have delivered the letter to the letterbox at 25 Henson Street, Merrylands but for the tenants not to have received the letter. Letters can go missing from letter boxes. 10 In relation to the particular circumstances in this case, I consider that where a council does have a notice for sale concerning the preferred address for rates notices of a property under s 604 of the Local Government Act that prudence suggests that any notice of intended litigation ought be sent to that address. It is also of concern that Mr Zeait says he had no contact from a Council officer at all about the matter whether by telephone, letter or personal attendance. More notice than a letter from a solicitor alone is needed in these circumstances particularly where there is simply no other contact by council officers with a defendant (or at least there is no evidence of any before me). In this case it is Mr Zeait's evidence that had he been aware of the Council's concerns he would have taken action much earlier and would not have been exposed to any unnecessary legal expense. 11 A relevant matter to note is that the summons filed by the Council's solicitor in this Court identifies that Mr Zeait's address was 15 Walker Street, Merrylands. If the Court had had to contact Mr Zeait that is the address that would have been used. That suggests it would have been prudent for the Council or its solicitor to do the same. 12 In these circumstances I do not consider adequate or due notice of the Class 4 proceedings was given and I do not consider the Council's costs ought be paid by the Respondent. The appropriate costs order is that the parties should pay their own costs of these proceedings. 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.