Land and Environment Court New South Wales Medium Neutral Citation: Council of the City of Sydney v J V Selection Holding Pty Ltd [2012] NSWLEC 230 Hearing dates: 12 October 2012 Decision date: 12 October 2012 Jurisdiction: Class 4 Before: Sheahan J Decision: The respondent is ordered to pay the applicant's costs in the sum of $5,037.00, within 28 days. Catchwords: COSTS: Principles to apply when proceedings are swiftly resolved - disentitling conduct - reliance on agents Cases Cited: Commonwealth Bank of Australia v Hattersley [2001] NSWSC 60; (2001) 51 NSWLR 333 Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441 Idoport Pty Limited v National Australia Bank Limited [2007] NSWSC 23 Category: Costs Parties: Council of the City of Sydney (Applicant) J V Selection Holding Pty Ltd (Respondent) Representation: Mr A Hawkes, solicitor (Applicant) Chao Xing Cai, director (Respondent), assisted by his son, Ren Ji Cai Council of the City of Sydney (Applicant) N/A (Respondent) File Number(s): 40882 of 2012 Judgment 1These Class 4 civil enforcement proceedings were resolved by consent orders made by Biscoe J on 21 September, and the question of costs has been argued between the Council and members of the Cai family, in person, on behalf of the respondent company, before me this morning. 2The evidence on costs comprises affidavits on each side (Bradley Kerr for the Council, and Chao Xing Cai for the respondent), and there is little dispute on the facts. 3The Council was concerned about the danger posed by an ornate parapet structure, and/or its balustrade, on a vacant building, overlooking Riley Street, Surry Hills. The building has some heritage status and protection, and the Council sought to be very specific about any works it required to be done. The Council's estimate of the costs of the protective works to the balustrade is $4,000. 4The respondent company intends to renovate the whole building, and its commercial preference, for financial reasons, would be to do any necessary repair works, or replace the parapet, as part of the renovation project, estimated to cost $462,000. 5The Council was persistent, and the respondent company relied on a design company, which it had appointed to manage the whole project, to attend to the parapet. 6It is clear that the allocated employee of the design company (Mr Tuckwell), who assured the respondent that he would "take care of everything", did not fully inform the respondent, and left his employment and the project at a critical time in regard to the respondent's problematic structure. 7In the name of the respondent, Tuckwell had obtained a structural engineer's report indicating the parapet's short term stability, but some longer term risk, and recommending certain works to be done within three months to the balustrade, works for which he sought and obtained Council's approval, all apparently without the detailed knowledge of the respondent. 8In those circumstances the respondent contends that the Council should have been more informative and helpful towards the directors, who have limited facility with English, and say they also lack "sophistication" in such matters, and so can easily become confused, for example as between balustrades and parapets. 9The bare facts are that the Council gave notice of intention in November 2011, and an Order for repairs one month later, on 22 December 2011. There was no appeal. A consent was granted to the design company on behalf of the respondent on 4 January 2012, for the planned renovations, but the failure to satisfy the Council's December Order was the subject of a warning letter on 15 February 2012. This was attended to by Tuckwell, in liaison with Council, which expected it could rely upon his representations and efforts on behalf of the respondent. Tuckwell provided the engineering report dated 16 April 2012, and it was approved on 19th, and he committed the respondent to the repair. 10Tuckwell left his employment in May or June 2012, and the Council, and the directors of the respondent, learnt of that a month or so later. Direct dealings followed between Council and the respondent. 11When the repair order remained totally outstanding, the Council's solicitor sought to contact Tuckwell as the end of the three month period was approaching. His email to Tuckwell was copied by letter to the respondent on 17 July (Exhibit C1). These proceedings were commenced on 29 August, and Points of Claim were filed on 13 September. Agreement was, therefore, quickly achieved, and I am satisfied that the directors did not intentionally defy the Council at any stage. 12Council's correspondence about the orders and the compliance requirement was all addressed to the respondent's Burwood address, not the design company's Balmain address. 13"The director" of the company, Chao Xing Cai, know as Joseph, deposes that he received the November 2011 notice and the December 2011 order, sought Tuckwell's assistance, and was assured he would "handle" it. Cai made payments to Tuckwell, in favour of the consulting engineer (Spad Consulting), for what he thought was part of the process to obtain the construction certificate for the renovations, but he received no expert report, and was not informed of its purpose. 14Tuckwell told him that he was looking unsuccessfully for a builder to repair the parapet. Cai says he told the Council of Tuckwell's departure. The respondent received quotes dated 5 July to remove the parapet for $3,960, and reinstate it for $28,600. Council told him on 10 August that that was not appropriate for a heritage item, and he then expressed his preference to "temporarily secure" it while the renovation proceeded, as "finances permit". Council told him that that "may not be the best option". 15Cai went overseas 28 August -9 September, during which time the proceedings commenced, and he contacted Council on his return. Council's solicitor sent him the engineer's report on 14 September. He says Council's delay in clearly explaining what it required renders the proceedings unnecessary. 16I am afraid I cannot accept those submissions. 17The Council was reasonable in accepting the advice of an engineer briefed on behalf of the respondent by its appointed project manager. That advice indicated that protective repairs to the balustrade were required by July this year. 18When they were not done by August, it was reasonable for Council to commence proceedings. It is not guilty of any disentitling conduct on the evidence, and seeks only compensatory costs. It should obtain an order to that effect; Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441, at [80]. 19The Council estimates those costs at $5,037, and its itemised estimate, as already served, seems reasonable and appropriate. 20The respondent made no submission against that estimate, and it is in accordance with the decisions in Idoport Pty Limited v National Australia Bank Limited [2007] NSWSC 23 and Commonwealth Bank of Australia v Hattersley [2001] NSWSC 60; (2001) 51 NSWLR 333. 21I will retain the exhibited correspondence, and publish these reasons. 22The respondent is ordered to pay the applicant's costs in the sum of $5,037.00, within 28 days. ********** 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: 12 October 2012