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). Competing submissions 10The respondents filed their submissions on costs on 5 February 2013, and Council responded on 13 February 2013. 11The respondents' submissions requested orders that the Council pay all costs, but they provided little assistance to the court. The substance of them is now set out in full (emphasis in original): 1. My main case against Wollongong City Council was that C. Thorne conspired to pervert the course of justice. This came in the proceedings when I held 91/711 approval of pool cover by Wollongong City Council 6/6/1991 and said C.Thorne had this approval of the pool cover in one hand but with the other hand filled out demolition order item 8 "pool cover to be demolished as it is not shown on any approvals held by Council". "This is a blatant lie and I want a ruling on this and I want the ruling now". To this your Honour replied: "How else could we get you into court?" 2. With the G.Coward letter I made at least 2 mistakes: (i) I assumed the word "approval" meant "approval". (ii) I carried out the work he ordered me to do. The majority of this work now has to be demolished. Wollongong City Council was unable to produce these "approvals held". (iii) The original demolition order covered all structures visible from Google except (C). This structure was added at 4.00pm on 23/10/2012, i.e. after the case had finished. (iv) The orders of 7/4/2011 were not handed to my representative until 9/5/2011 (thirty-two days afterwards). The LEC (Land and Environment Court) would not accept an appeal as it was more than twenty-eight days. (v) Photographs held by the LEC are the result of an illegal search warrant and photos taken over the fence from private property. (vi) Had your Honour accepted the evidence of L. Kitchener that would have confirmed statements by four people that C. Thorne did not/could not have come out when he said he did. The fact that he swore that V. King came out with him shows he lies with impunity. 12The allegation against me at the conclusion of par 1 of those submissions is completely untrue, and no evidence was provided for it. No such statement or exchange can be located anywhere in the official transcript of the hearing, nor in notes retained by the court or by Council's solicitor (see T22.10.12 from p45, L38). In respect of the allegation in par 2(vi), see T22.10.12, p28, LL14-19, and pars [52] and [72] of the principal judgment. 13The applicant Council noted that the submissions provided by the respondents are irrelevant to the determination of the question of costs, and merely raise "fresh and inappropriate", unsuitable attacks on Mr Thorn (written submissions par 20). 14Council seeks an order that costs of the proceedings be paid by the respondents, as agreed or assessed, there being no circumstances which would warrant any other order being made. Further, the Council submits that the respondents were on notice in respect of costs, prior to the commencement of proceedings. 15Council submits that although the ambit of its claim moderated during the proceedings, that should not lead to the conclusion that any costs order, other than the usual one - that costs follow the event - ought to be made. 16The respondents' intransigent attitude to the Council before and during the proceedings resulted in the Council having to incur far more costs than would normally be the case. (See, for example, [41], [50], [52], [54], c.f. [74]). 17Council submits, correctly, that it largely obtained the relief originally sought, and that the proceedings were determined in its favour. 18It makes no claim for its costs to be paid on an indemnity basis. Conclusion 19Uniform Civil Procedure Rules 2005, Part 42, rule 1 provides that in Class 4 proceedings costs should follow the event, unless the court finds some other order should be made as to the whole or part of any costs. 20Costs orders are made to compensate the successful party, not to punish the unsuccessful one, but only where there is no disentitling conduct. See Latoudis v Casey (1990) 170 CLR 534, North Sydney Council v Wouters [2012] NSWLEC 94, at [26], and Warringah Council v Ulrich [2012] NSWLEC 234, at [98]-[99]. 21In the present proceedings, I find that the Council's conduct of the dispute, and the proceedings themselves, has been entirely reasonable. There is no evidence of disentitling conduct. 22In terms of an "event" for costs to "follow", the Council has been entirely successful. Orders 23The orders of the Court will, therefore, be: (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. 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: 03 May 2013