Nanevski Developments Pty Limited v Rockdale City Council [2010] NSWLEC 7

Land and Environment Court of New South Wales

CITATION : Nanevski Developments Pty Limited v Rockdale City Council [2010] NSWLEC 7

APPLICANT Nanevski Developments Pty Limited PARTIES : RESPONDENT Rockdale City Council

FILE NUMBER(S) : 10721 of 2009

CORAM: Pepper J

PRACTICE AND PROCEDURE :- application to vacate hearing dates - further expert evidence require consequent upon filing of amended statement of facts and contentions raising new substantive contentions - vacation allowed KEY ISSUES: COSTS:- because the acts of each party contributed to the need to vacate the hearing it was fair that there be no orders as to costs

LEGISLATION CITED: Civil Procedure Act 2005 ss 56-59

CASES CITED: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27

DATES OF HEARING: 5 January 2010

EX TEMPORE JUDGMENT DATE : 5 January 2010

APPLICANT D Briggs (solicitor) SOLICITORS DG Briggs and Associates LEGAL REPRESENTATIVES: RESPONDENT J P Merlino (solicitor) SOLICITORS HWL Ebsworth

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PEPPER J

5 January 2010

10721 of 2009 Nanevski Developments Pty Limited v Rockdale City Council

JUDGMENT

Introduction 1 HER HONOUR: This is a notice of motion filed by Nanevski Developments Pty Limited ("the applicant") against Rockdale City Council ("the council") to vacate hearing dates in a class 1 matter on 19 and 20 January 2010. The matter was set down for hearing on 18 November 2009. 2 The applicant relies on the affidavit of Mr Damien Briggs sworn and filed on 29 December 2009. 3 The council does not rely on any evidence to oppose the vacation sought. 4 For the reasons given below I have upheld the application and vacated the hearing dates. Factual Background and Evidence of Mr Briggs 5 In his affidavit Mr Briggs sets out, sufficient for the purpose of determining the notice of motion, the history of the proceedings to date. 6 In short, he says that pursuant to directions of this Court on 18 November 2009, the applicant amended its architectural scheme responding to matters arising from a terminated s 34 conference before Commissioner Bly held on 16 November 2009. 7 Order 4 of those directions ordered that the council file and serve its amended statement of facts and contentions by 10 December 2009. 8 The applicant was served with an unsigned copy of the council's amended statement of facts and contentions on the afternoon of 14 December 2009. 9 Mr Briggs contends, both in his evidence and in his submissions, that the amended statement of facts and contentions included a number of new contentions not previously known to the applicant and which did not arise out of the s 34 conference. In particular, contention B1 raised issues as to the accuracy of critical survey information which in turn gave rise to consequential issues relating to flooding flowing from the inaccuracy of the information. 10 Mr Briggs forwarded the amended statement of facts and contentions on 16 December 2009 to the applicant and to the applicant's architect, consultant town planner and consultant age care expert, seeking a response to the new contentions. 11 Numerous telephone conversations followed, the result of which was that on 17 December 2009, Mr Briggs was informed by telephone by Mr David Wasson from A B Stephens, the surveyors retained by the applicant, that an error had in fact occurred in undertaking the original fieldwork resulting in the incorrect survey information. 12 Later that day Mr Wasson attached to an email to Mr Briggs a corrected survey plan. 13 Mr Briggs deposed that there were a number of consequences arising from the incorrect survey information. In particular, there was now the need to review and correct the architectural plans, and in addition, further expert evidence was required in relation to flooding and the impact of the development upon the water table. 14 Mr Briggs also deposed in his affidavit, and submitted to the Court, that despite his best endeavours it was not possible to get this additional evidence filed by, as the Court had previously directed, 23 December 2009. 15 Mr Briggs informed the Court both orally and in his affidavit that it was not known when, in light of the Christmas and New Year vacation, this evidence would be obtainable in the "foreseeable future" prior to the hearing on 19 and 20 January 2009. 16 Finally, Mr Briggs deposed that he had moved quickly to alert the council to the difficulties created by the amended statement of facts and contentions and to notify them that a possible consequence of the new contentions was that the hearing dates would need to be vacated. Consideration 17 There is no criticism (and there can be none) from the council of any delay on Mr Briggs' part in seeking to draw this matter to the Court's attention. He did so at the first available opportunity. 18 Furthermore, I accept that genuine attempts have been made by Mr Briggs to communicate with various of the applicant's experts, and that despite these attempts a timetable for the filing of further evidence cannot be finalised. 19 Mr Briggs stated from the bar table that there were "other matters" raised in the amended statement of facts and contentions that would also require additional evidence. However, these "other matters" and the additional evidence they required were not referred to in Mr Briggs' affidavit. Accordingly, I did not give them any weight and I have dealt with the motion primarily on the two issues that were initially relied upon by Mr Briggs, namely, the incorrect survey information and the flooding matters. 20 Although the council opposes the vacation it has properly conceded that the incorrect survey information and consequential flooding matters raised by it are, first, substantive new matters that were not contained in the original statement of facts and contentions, and second, each requires additional expert evidence to be met. 21 Considering all of these factors I agree with the applicant that the vacation sought must be granted. 22 The issues that were raised in the amended statement of facts and contentions are ones that were properly raised by the council and there is no criticism of it in respect of their belated identification, leaving aside the delay in service of the amended statement of facts and contentions. I accept that once raised they require additional expert evidence that cannot be obtained either in accordance with the Court timetable or, more importantly, in a reasonable timeframe prior to the hearing. 23 Given the explanation of the circumstances necessitating the application for vacation, I am satisfied that the overriding purpose contained in s 56 of the Civil Procedure Act 2005, particularly having regard to the matters that I must also consider set out in ss 57, 58 and 59 of that Act, have been satisfied. 24 I have reached this conclusion having regard to the principles set out in the High Court decision of AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. Costs 25 The only issue that remains to be determined is that of costs. 26 The council has sought its costs thrown away as a consequence of the vacation to be paid by the applicant. The council concedes that these costs are likely to be minimal. 27 The applicant opposes the making of such an order on the basis that but for the amended statement of facts and contentions raising the new contentions requiring further evidence, it would not have had to vacate the hearing date. There is some force in this submission. 28 There is also force in the submission made by the applicant that in light of the concession made by council that the costs thrown away will be minimal, further expense ought not be incurred in having these costs assessed, assuming no agreement can be reached as to their quantum. This is especially so given that costs are not usually ordered in class 1 proceedings. 29 Although it is the applicant who is vacating the hearing which will result in costs thrown away, I nevertheless agree with the applicant that it should not bear the burden of the council's costs. While on the one hand, the further evidence which is required is as a result of an error of calculation made by one of the applicant's experts; on the other hand, the identification of this error arose as a result of the late filing of the amended statement of facts and contentions that raised the new contentions. Both parties have, therefore, contributed to the necessity for the vacation. Consequently it is fair that both parties bear their own costs. Orders 30 The orders of the Court are as follows, (1) that the hearing dates of 19 and 20 January 2010 in these proceedings be vacated; and