Land and Environment Court of New South Wales CITATION : Randwick City Council v. Chris Mekler [1998] NSWLEC 134 APPLICANT Randwick City Council FIRST RESPONDENT Chris Mekler PARTIES : SECOND RESPONDENT Steven Mekler THIRD RESPONDENT Rinpurr Pty Ltd FILE NUMBER(S) : 40323 of 1997 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Supreme Court Rules Part 13 Rule 5 CASES CITED: DATES OF HEARING: 28/05/98 DATE OF JUDGMENT: 05/28/1998 APPLICANT Ms. Gerathy, Solicitor LEGAL REPRESENTATIVES: Bowen and Gerathy RESPONDENT Mr. Campbell, Barrister JUDGMENT: This is a Motion filed in Court on 22 May 1998 in Class Four proceedings brought by Randwick Council against three named Respondents claiming declaratory and injunctive relief in relation to premises situated at Nos. 8 to 15 Perouse Road, Randwick other than for use as a service station operating between the hours of 7am and 7pm. The Motion before me today which is brought by the Second Respondent, Chris Mekler, seeks relief pursuant to Supreme Court Rules Part 13 Rule 5, that the proceedings against the Second Respondent be dismissed. The Motion is supported by an affidavit filed by the Second Respondent dated 26 May 1998 in which he deposes to his non-involvement with the premises, the subject of the Class Four proceedings, noting in paragraph 4 that the premises are owned by his father, the First Respondent in the proceedings, and the Company nominated as a Third Respondent. The Council did not oppose the relief claimed and in those circumstances it was granted. The only outstanding question is that of costs. The Second Respondent is seeking an order for costs in the proceedings. Ms Gerathy, on behalf of the Council, has opposed an order for costs or alternatively has submitted that in the circumstances of the case, costs should be limited to costs of today's Motion. Those circumstances include the fact that until today the Second Respondent has appeared and participated in the proceedings on his own behalf, but today he appears by Counsel. It is not disputed that he was not served with process until 27 February this year. As it happened, he was served in the precincts of the Court by the Solicitor acting for the Council, Ms Gerathy, and it is not disputed that upon receiving the process, he said that he had no involvement in the case. This was confirmed in his letter dated 10 March 1998 to the Council's Solicitors, (being Exhibit A). In the circumstances, it appears that the Council has wrongly joined the Second Respondent in its claim for relief in respect of the use of the aforesaid premises. The only basis for joining him is deposed to in Ms Gerathy's affidavit of 26 February this year which indicated that before the action was commenced in Court on 23 December last year and before the Second Respondent was served with process on 27 February this year, business name searches indicated that he was the proprietor of a business registration "Otto Gas" and it was a sign to that effect displayed at the subject premises which provides the only tangible link between the Second Respondent and the Council's course of action in commencing these proceedings. In all the circumstances, I see no reason why the Second Respondent, having been sued in the action without foundation, should be denied the ordinary costs consequence of the result in the case. Accordingly, I order the Council to pay the Second Respondent's costs in the proceedings including the cost of today's Motion. The exhibits shall remain on the Court's papers. 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.