Land and Environment Court of New South Wales CITATION : Council of the City of Sydney v Velitchko [2008] NSWLEC 257 APPLICANT: Council of the City of Sydney PARTIES : FIRST RESPONDENT: Vassili Velitchko SECOND RESPONDENT: Tatiana Velitchko FILE NUMBER(S) : 40527 of 2008 CORAM: Biscoe J KEY ISSUES: Practice and Procedure :- application for leave to discontinue proceedings and for summary dismissal of cross-claim. Civil Procedure Act 2005 (NSW), ss 56, 140(3)(a)(ii), 149E Environmental Planning and Assessment Act 1979 (NSW), ss 76A(1)(b), 81A(2)(c), 124(2)(c) LEGISLATION CITED: Environment Planning and Assessment Regulation 2000, cl 104 Local Government Act 1993 (NSW), s 124 Supreme Court Act 1970 (NSW), s 23 Uniform Civil Procedure Rules 2005 (NSW), r 13.4 DATES OF HEARING: 20/8/08 EX TEMPORE JUDGMENT DATE : 20 August 2008 APPLICANT: Ms L. M. Byrne, solicitor SOLICITORS: Sydney City Council LEGAL REPRESENTATIVES: RESPONDENTS: Mr V. Velitchko (in person) SOLICITORS: N/A JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 20 August 2008 40527 of 2008 COUNCIL OF THE CITY OF SYDNEY v VASSILI VELITCHKO & ANOR JUDGMENT 1 HIS HONOUR: This is a notice of motion by the Council of the City of Sydney seeking (a) leave to discontinue its proceedings against the respondents Vassili Velitchko and Tatiana Velitchko with no order as to costs, and (b) summary dismissal of the respondents' amended cross-claim. 2 By its amended Class 4 Application filed on 10 July 2008 the council sought the following relief in relation to the respondents' house at 109 Fitzroy Street, Surry Hills: 1. A declaration that the respondents have failed to comply with the terms of orders dated 17 March 2008 served on the respondents by the council pursuant to s 124 of the Local Government Act 1993 ( the s 124 order ). This order required the respondents to remove accumulated materials such as cans, paper coffee cups, paper, cardboard, wood scraps, glass, the mattress, printer components, the fan, the milk crate and tarpaulin from the front of the premises and dispose of the material at an approved waste facility. The order also required the respondents to prevent the accumulation of such material and maintain those premises in a safe and healthy condition; 2. a declaration that the respondents are in breach of s 76A(1)(b) of the Environmental Planning and Assessment Act 1979 ( EPA Act ) in carrying out development contrary to the terms of development consent U03-00920, dated 14 January 2004; 3. a declaration that the respondents are in breach of s 81A(2)(c) of the EPA Act in commencing building work at 109 Fitzroy Street, Surry Hills purportedly pursuant to the development consent, without providing council with a written notice of an intention to commence building works in accordance with cl 104 of the Environment Planning and Assessment Regulation 2000 ; 4. an order that the respondents within a period of fourteen days comply with the s 124 order; 5. an order that pursuant to s 124(2)(c) of the EPA Act within 21 days the respondents reinstate the building at 109 Fitzroy Street, Surry Hills to the condition it was in before the breach of the EPA Act was committed; 6. an order that the respondents comply with specified conditions of the development consent U03-00920. 3 Mr Velitchko appears in person. He has handed me a document now entitled "Amended cross-claim", which seeks (a) "cancellation" of the s 124 order and other relief which appears to go to the cross-claim; (b) that all issues in the council's amended Class 4 Application be dealt with and resolved by the Court; and (c) that the council's notice of motion before me and its intended notice of discontinuance be refused. Leave to discontinue 4 The council seeks leave to discontinue its proceedings for three reasons. First, the respondents no longer have possession of the property because a mortgagee, the National Australia Bank, has entered into possession; consequently, the respondents are not in a position to meet the claims. Secondly, the s 124 order has been complied with by the bank as mortgagee in possession. Thirdly, the bank intends to comply fully with the council's concerns as to the stability of the building. 5 Mr Velitchko opposes the application for leave to discontinue. He submits that the National Australia Bank has not indicated unequivocally that it will comply with a council notice to the bank of 29 July 2008 and it is important to him that the Court determine whether the council is entitled to the relief in the amended Application. That notice to the bank stated that the council intends to give the bank a statutory order requiring it to carry out work to, in effect, restore the premises to a safe condition. The circumstances identified in the notice were that: 1. The building is or is likely to become a danger to the public. 2. The building is so dilapidated as to be prejudicial to persons or property in the neighbourhood. 3. The building is situated in the immediate vicinity of a public place and is dangerous to persons on or in the public place. 4. The development consent is not being complied with. 6 A subsequent email from the bank to the council of 11 August 2008 stated: Please find attached photos showing that fencing had been erected at the Velitcho [sic] property, we also had warning signs, but someone keeps removing them… We should have the report from the structural engineer shortly, once obtained the bank will address the remaining orders. 7 It seems from the bank's email that it is seriously addressing the notice and there are reasonable prospects that it will comply. If the bank did not comply and the council were to make the foreshadowed order against it, then it seems likely that the bank would comply, and would be obliged to comply, with such an order. In my view, the reasons given by the council for seeking leave to discontinue its proceedings are sound. Accordingly, I propose to grant leave for it do so. I deal with the issue of costs below. Summary dismissal of amended cross-claim 8 I deal next with the council's motion for summary dismissal of the respondents' amended cross-claim filed on 20 August 2008. That amended cross-claim supersedes the respondents' cross-claim filed on 4 July 2008 and their cross-claim/cross-summons filed on 25 July 2008. 9 The Uniform Civil Procedure Rules 2005 r 13.4 provides that: (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, … the court may order that the proceedings be dismissed generally or in relation to that claim. 10 The council submits that no reasonable cause of action is disclosed or that the proceedings are frivolous or vexatious by reason of absence of jurisdiction. 11 I propose to deal with the prayers for relief in the amended cross-claim seriatim. 12 Prayer 1 in the amended cross-claim seeks: Cancelation [sic] of the Order dated 17.03.2008 declaring inter alia: (a) Order given in breach of s 131 of Local Government Act 1993, without considering rules of natural justice and procedural fairness (Annexure p 1). (b) In breach of s 133(1) of Local Government Act 1993, allowing person to make representations why Order should not be given. (c) In breach of s 134 obliging Council to hear and consider any representation made under s 133 of Local Government Act 1993. 13 The said order dated 17 March 2004 is the s 124 order referred to at [2] above. As stated earlier, that order was complied with (on or before 29 July 2008) by the National Australia Bank as mortgagee in possession. 14 Mr Velitchko says that that the s 124 order was invalid because the council did not take into consideration that the material was dumped on his property by others. He wrote letters to the council stating that was the position. He says, however, that he was entitled to have a meeting with the council to put his position orally. He is also concerned that the mortgagee in possession may charge him for removing the material. Therefore he wishes the Court to declare that the s 124 order was invalid. 15 I consider that there is no or insufficient utility in permitting the invalidity claim to proceed to a hearing given that the material has been removed and the council has been given leave to discontinue its proceedings seeking to enforce the s 124 order. If there is still a live issue as to any obligation on the respondents to remove the material under the s 124 order, it would seem to arise in the context of the relationship between Mr Velitchko and the bank. No such claim in the context of that relationship is before this Court. Nor do I think that this Court would have jurisdiction to entertain such a claim. 16 The next matter to consider is prayer 2 in the amended cross-claim, which is in the following terms: "Allow the motion of transfer and hear it within current proceedings (Annexure to cross-summons pp 2-3)". This is intended to be a reference to Mr Velitchko's notice of motion, filed in this Court on 25 July 2008, in which he seeks an order for the transfer of a small claim lodged in Kogarah Local Court (case number 88483/2008) by the council against Mr and Mrs Velitchko in relation to unpaid council rates for the property at 109 Fitzroy Street, Surry Hills. 17 That notice of motion places reliance on s 140(3)(a)(ii) of the Civil Procedure Act 2005. That statutory provision is concerned with the circumstances in which the Supreme Court may order the transfer to the Supreme Court of proceedings in the District Court on a claim for damages arising from personal injury or death. It does not empower this Court to order the transfer to this Court of proceedings from the Local Court. There is no jurisdiction in this Court to order that transfer. 18 Accordingly, this part of the amended cross-claim must be dismissed. For completeness and consistency, I also dismiss Mr Velitchko's notice of motion filed on 25 July 2008 seeking the transfer to this Court of the small claim in the Kogarah Local Court. 19 The next matter to consider is prayer 3 in the amended cross-claim, which seeks: A Court Order awarding [The Cross–claimant] damages in the amount AD $300,000.00 paid by City of Sydney Council named as Compensation for inconvenience, monetary loss and continuous emotional stress caused. 20 Mr Velitchko has explained, as I understand him, that he seeks damages against the council because it did not act on his request in relation to a sewerage leak which he says emanated from next door premises, nor on his requests in relation to the dumping of rubbish by others on his property. He says he requested the council to investigate these matters, they had an opportunity to do so, but they have not done so. Consequently, he says, council is in breach of its duty to him whereby he has incurred damages in the amount claimed, including bank interest. 21 Mr Velitchko submits that this Court has jurisdiction to entertain the claim by reason of s 23 of the Supreme Court Act 1970, which provides: The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales. 22 The "Court" referred to in s 23 is the Supreme Court of New South Wales. It is not this Court. Accordingly, s 23 is irrelevant. 23 Mr Velitchko also submits that this Court has jurisdiction to entertain this claim by reason of s 149E of the Civil Procedure Act 2005 which provides: The Land and Environment Court has, and may exercise, all of the jurisdiction of the Supreme Court in relation to any proceedings to which a transfer order relates, including jurisdiction to determine any question arising in any such proceedings. 24 A "transfer order" here means an order for the transfer of proceedings from the Supreme Court to this Court. Accordingly, s 149E is irrelevant. 25 Mr Velitchko also submits that this Court has jurisdiction to entertain this claim by reason of s 56 of the Civil Procedure Act 2005, which provides: (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rules… 26 Section 56 is an important provision which dominates civil procedure in this and other courts in New South Wales. However, it is not a jurisdictional provision which can be interpreted as conferring jurisdiction over this matter on this Court. Accordingly, s 56 is irrelevant. 27 This is a Court of limited statutory jurisdiction. Whatever the merits of the claim in prayer 3 may be, in my opinion this Court has no jurisdiction to entertain it. Accordingly, this part of the amended cross-claim must be dismissed. 28 The next matter to consider is prayer 4 in the amended cross-claim for "An Order forcing City of Sydney Council to pay all associated costs for proceedings". I have earlier given council leave to discontinue the proceedings and the council has filed a notice of discontinuance in court. The council submits that it is inappropriate to order the council to pay the respondents' costs of the discontinued proceedings. They point out that Mr Velitchko is self represented. They also say that when this matter was before the court on 4 July 2008 Mr Velitchko did not inform the court that there was a mortgagee in possession, and that if the council had been informed on that occasion it might then have discontinued the proceedings. 29 Mr Velitchko, however, says that although the bank informed him that they were to take possession in May, he considered that for the bank to do so would be illegal. He says that he disputed the bank's possession. Mr Velitchko says that he found out that he had been locked out by the bank on 4 August 2008. I note, however, that the evidence indicates that the bank contacted the council on 18 July 2008 and indicated that it had taken possession of the property. 30 Although Mr and Mrs Velitchko have been self represented throughout the proceedings and therefore have not incurred costs for lawyers, it may be that they have incurred (and I understood him to indicate that they had incurred) some filing fees. 31 Although there were sound reasons for the council to discontinue the proceedings, in the particular circumstances of the case I do not think that the respondents should be out of pocket for any filing fees, other than filing fees relating to any cross-claim. Accordingly, I propose to order the council to pay the respondents the amount of any filing fee costs that they have incurred other than in relation to any cross-claim. 32 The next matter to consider is prayer 5 in the amended cross-claim, which seeks: An Order in execution of s 22 of the Land and Environment Court Act 1979 awarding a [The Cross-claimant] any other remedies The Court decides appropriate and Justified (for any not mentioned cross claimant's rights breached). 33 Upon that proposed order being discussed, it appears that what is intended is an order which might otherwise have been expressed as "any other order that the court considers appropriate". This part of the amended cross-claim falls with prayers 1 to 3 and should be dismissed. 34 The next matter to consider is prayer 6 in the amended cross-claim, which states: All issues listed in plaintiff's amended Class 4 Application to be dealt and resolved in Court, with defendants or their representatives be present. 35 I have earlier dealt with this matter adversely to Mr Velitchko. Accordingly, this part of the amended cross-claim should be dismissed. 36 The only other prayer in the amended cross-claim is for an order that the council's notice of motion of 13 August 2008, with which I am currently dealing, should be refused. That is subsumed in this judgment. 37 For these reasons, I propose to dismiss the amended cross-claim filed on 20 August 2008. Orders 38 The orders of the Court will be as follows: 1. The applicant be given leave to discontinue the proceedings. 2. The amended cross-claim filed on 20 August 2008 is dismissed. 3. The first respondent's notice of motion filed on 25 July 2008 is dismissed. 4. The applicant is to pay any filing fee costs incurred by the respondents in the proceedings other than in relation to any cross-claim. 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.