Land and Environment Court New South Wales Medium Neutral Citation: Council of the City of Sydney v Ahern [2012] NSWLEC 187 Hearing dates: 9 August 2012 Decision date: 09 August 2012 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [21] Catchwords: CIVIL ENFORCEMENT - non-compliance with order issued by council to repair balcony - ex parte proceedings - declarations and consequential orders made. COSTS - whether applicant's costs should be awarded in a fixed sum. Legislation Cited: Civil Procedure Act 2005 ss 56, 98 Evidence Act 1995 ss 59, 69 Local Government Act 1993 ss 124, 676, 678 Cases Cited: Broken Hill City Council v Tumanic [2012] NSWLEC 162 Puruse Pty Limited v Council of the City of Sydney [2009] NSWLEC 163; (2009) 169 LGERA 85 Woollahra Municipal Council v Tilley [2010] NSWLEC 75 Category: Principal judgment Parties: Council of the City of Sydney (Applicant) Mr Barry Ahern (Respondent) Representation: Mr A Hawkes (solicitor) (Applicant) N/A (Respondent) Council of the City of Sydney (Applicant) N/A (Respondent) File Number(s): 40380 of 2012 EX TEMPORE Judgment The Respondent Fails to Comply With an Order Issued by the Council to Repair a Balcony 1This is an application for declaratory relief and consequential orders that the respondent, Mr Barry Ahern, has failed to comply with the terms of an order issued pursuant to s 124 of the Local Government Act 1993 ("the LGA") by the Council of the City of Sydney ("the council") dated 6 January 2012 ("the order"), that has caused a breach of that Act. The order relates to premises located at 396 Bourke Street, Surry Hills ("the premises"). The order is annexed to this judgment at 'A'. 2Section 124 of the LGA relevantly provides as follows: A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? 21 To do or refrain from doing such things as are specified in the order to ensure that land is, or premises are, placed or kept in a safe or healthy condition The land or premises are not in a safe or healthy condition Owner or occupier of land or premises 3The order relates to the first floor balcony facing Bourke Street. The order states that the balcony "is compromised and in the event of a catastrophic failure is likely to become a danger to the public". The order initially required a period of compliance of 28 days from the date of its issue. This date has been ignored by Mr Ahern, as have the numerous attempts by the council to resolve the matter absent the need for formal proceedings. 4Evidence of the state of the balcony appears in the affidavit of Mr Brad Kerr, affirmed 5 July 2012 and relied on by the council. Mr Kerr is a building surveyor with the council. His duties include inspecting buildings to determine whether or not various hazards exist and issuing orders such as the order issued to Mr Ahern. 5Mr Kerr has had access to and has inspected the premises the subject of these proceedings. During the course of his inspections he took a number of photographs, which were annexed to his affidavit. Those photographs clearly demonstrate the dangerous state of the balcony. 6Mr Kerr states that, in his expert opinion, the balcony is unsafe for the following reasons: (a)first, the northern support post has shifted and become displaced so that between approximately half to one third of the northern post is overhanging the balcony decking, drastically reducing the support the post is providing to the balcony roof and weakening the support to the balcony railings; and (b)second, the balcony balustrade has had vertical rails removed leaving considerable gaps in the balcony through which people, particularly children or pets, could potentially fall. 7Mr Kerr also deposes that, in his expert opinion, Mr Ahern, under the supervision of a suitably trained and competent person, for example a structural engineer, could readily rectify the defects he gives evidence of in relation to the balcony. This could be achieved by properly fixing the northern support post and replacing the dislodged balcony balustrade rails. In Mr Kerr's opinion this would take no longer than two days and cost less than $3,000. The Hearing is Ex Parte 8When the matter was called on for hearing this morning Mr Ahern did not appear. This was not surprising given his non appearance to date in the proceedings. 9It is clear from the documentary material before the Court that Mr Ahern has been served with the summons, Mr Kerr's affidavit and various correspondence from the council notifying Mr Ahern that these proceedings had been commenced. It is also clear from a bundle of correspondence, which Mr Adrian Hawkes, the solicitor for the council, tendered before the Court, that Mr Ahern was aware that the final hearing of the matter was listed for today. 10In particular, a letter dated 6 August 2012 sent by both express post and email to Mr Ahern enclosing submissions, a schedule of costs and the orders that the council would seek from the Court, was received by Mr Ahern. In the letter Mr Ahern was reminded that the matter was listed for hearing on "Thursday 9 August at 10am in the Land and Environment Court", that is to say, today. 11An email sent today from Mr Ahern to Mr Hawkes acknowledged receipt of the 6 August 2012 email and correspondence and stated: I had arranged for the work to start on Friday 17 August but given the costs council has imposed, that will have to be deferred. Given my financial situation, I cannot afford to pay costs and for the work. I will be busy today completing a practical assessment for a course I have undertaken to earn more money so I will be in contact early next week. 12I therefore have no doubt whatsoever that Mr Ahern was aware that the matter was listed for hearing today. In all of the circumstances it is appropriate that the Court proceed to hear the matter on an ex parte basis. 13In light of the evidence contained in the affidavit of Mr Kerr as to the state of the balcony and the danger that it poses, I am satisfied that it is appropriate to make the declarations sought by the council and grant the consequential relief. 14That relief includes an order that Mr Ahern comply with the order within one month from today's date. The power of the Court to make such an order is contained in s 676(1) of the LGA. The Council Seeks its Fixed Costs 15The council seeks an order that its costs be payable fixed in the sum of $4,602. 16There is no doubt that the council is entitled to an order for costs. The council has incurred costs in bringing these proceedings. It has acted reasonably in filing the summons and, as noted above, tried valiantly to avoid formal proceedings to effect compliance with the order. Being proceedings filed in Class 4 of the Court's jurisdiction, the normal rule is that costs follow the event unless otherwise specified in the rules of the Court. 17The Court's power to award costs is contained in s 98 of the Civil Procedure Act 2005 ("the CPA"). That section also provides for costs to be payable as a specified gross sum instead of assessed costs (see s 98(4) of the CPA). 18The principles applicable to the Court's discretion to make an order for costs fixed in a specific sum have been summarised in several cases in this Court (see Broken Hill City Council v Tumanic [2012] NSWLEC 162 at [63]-[65], Woollahra Municipal Council v Tilley [2010] NSWLEC 75 at [25] and Puruse Pty Limited v Council of the City of Sydney [2009] NSWLEC 163; (2009) 169 LGERA 85 at [83]-[84]). I apply them to the present case. In short, the question is whether it is fair and reasonable to award costs fixed in a specific sum. 19Mr Hawkes relied upon a schedule handed up by him as evidence of the quantum of the fixed costs the council seeks. The provenance of the schedule was not apparent from the face of the document. In the form in which the schedule was initially sought to be tendered, it was inadmissible hearsay (s 59 of the Evidence Act 1995. The schedule did not fall within the business record exception contained in s 69 of that Act because it was specifically prepared for the purpose of conducting legal proceedings: s 69(3)(a)). Mr Hawkes, however, gave oral evidence to the effect that: he was the author of the schedule; he had performed all of the legal work summarised in the schedule; and that the legal costs calculated therein were on a party-party basis. On the basis of Mr Hawkes' oral testimony, the schedule was received into evidence. 20In my opinion, given Mr Ahern's failure to participate in these proceedings and the difficulty the council has had in communicating with Mr Ahern; given that the council has sought, at every turn, to resolve this matter without the need to commence proceedings in order to minimise legal costs; given the admonishment in s 56 of the CPA with respect to the "just, quick and cheap" resolution of the real issues in dispute; and given the fact that the quantum of the costs sought is not excessive, it is fair and reasonable to fix the payment of the council's legal costs in the sum specified in the schedule. Orders 21In conformity with the above reasons the Court therefore: (1)declares that the respondent has failed to comply with the terms of the order annexed at 'A'; (2)declares that the respondent's failure to comply with the order annexed at 'A' is a breach of the Local Government Act 1993; (3)orders the respondent to complete the works specified in the order annexed at 'A' within 28 days; (4)orders the respondent to pay the applicant's legal costs fixed in the sum of $4,602; and (5)grants the parties liberty to restore on two days' notice. 22The Court has made an order granting the parties liberty to restore in the event that it is necessary for the council to approach the Court at a later date for orders to carry out the works itself should Mr Ahern fail to do so (see s 678(10) of the LGA). 23Of course, should Mr Ahern fail to comply with the orders made by the Court today, he may find himself in contempt, the consequences of which are serious. ********** Annexure 'A' 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. Decision last updated: 09 August 2012