Wollongong City Council v Kudrynski (No 2) [2013] NSWLEC 55

Land and Environment Court New South Wales

Medium Neutral Citation: Wollongong City Council v Kudrynski (No 2) [2013] NSWLEC 55 Hearing dates: Written submissions Decision date: 03 May 2013 Jurisdiction: Class 4 Before: Sheahan J Decision: 1.The respondents are ordered to pay the Council's costs, on a party-party basis, as agreed or assessed. 2. All exhibits may now be returned. Catchwords: COSTS - Principles to apply regarding costs in class 4 proceedings Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Latoudis v Casey (1990) 170 CLR 534 North Sydney Council v Wouters [2012] NSWLEC 94 Warringah Council v Ulrich [2012] NSWLEC 234 Wollongong City Council v Kudrynski [2013] NSWLEC 4 Category: Costs Parties: Wollongong City Council (Applicant) Julius Kudrynski (First Respondent) Alicia Kudrynski (Second Respondent) Representation: N/A Wollongong City Council (Applicant) N/A (Respondents) File Number(s): 40173 of 2012

Judgment

Introduction 1This judgment deals with competing applications by the parties for costs orders in respect of these proceedings. 2The factual circumstances of this matter are clearly set out in detail in the substantive judgment - Wollongong City Council v Kudrynski [2013] NSWLEC 4. 3Council brought the proceedings to obtain enforcement orders that Mr and Mrs Kudrynski remove unapproved structures and accumulated 'rubbish' stored on their premises at 14-16 Highway Avenue, West Wollongong. 4Orders were made on 29 January 2013 for (1) demolition and removal of the structures I found to be unauthorised, (2) some reinstatement works, and (3) compliance with an earlier Council order (see [84]). 5The respondents contended that all necessary approvals had been obtained, but they failed to discharge the onus of proof, nor did they make any coherent arguments for an exercise of discretion in their favour ([72]-[73]). Council established an absence of the relevant approvals and also adduced evidence, which worked against any exercise of discretion in favour of the Kudrynskis. 6The question of costs was reserved, and the parties were invited to make written submissions on it (see [11]-[13], [83], and Order 5 in [84]). 7Prior to the proceedings Council issued notices and had unsuccessful negotiations with the Kudrynskis' then representative. No agreement could be reached, and the Council sent them a further letter outlining its intentions. 8The respondents made no attempt to negotiate with the Council, and, at the hearing, Mr Kudrynski put up a spirited defence on behalf of his wife and himself. 9During the hearing Council moderated the relief sought as the evidence clarified the Kudrynskis' claims ([10], [43]). After two days of hearing Council filed revised short minutes and made submissions that if Council were successful in the proceedings a costs order should be made in the normal terms. (T23.10.12, p68, LL42-48).