Waverley Council v Bobolas (No 4) [2019] NSWLEC 25

Land and Environment Court New South Wales

Medium Neutral Citation: Waverley Council v Bobolas (No 4) [2019] NSWLEC 25 Hearing dates: 8 March 2019 Date of orders: 08 March 2019 Decision date: 08 March 2019 Jurisdiction: Class 4 Before: Pain J Decision: (1) Order 2 made on 19 December 2018 to be varied by the insertion of "as agreed or assessed" to read "The Second and Third Respondents are to pay the Council's costs of the notice of motion dated 11 December 2018 as agreed or assessed".

(2) The Council's costs incurred from the commencement of the hearing of the Respondents' notice of motion dated 2 January 2019 at 12.15 pm on 8 March 2019, as agreed or assessed, are to be paid by the Second and Third Respondents. Catchwords: PRACTICE AND PROCEDURE – application of slip rule – no basis for change to final orders under Uniform Civil Procedure Rules 2005 r 36.16 Legislation Cited: Uniform Civil Procedure Rules 2005 rr 36.15, 36.16, 36.17 Category: Procedural and other rulings Parties: Waverley Council (Applicant) Mary Bobolas (First Respondent) Elena Bobolas (Second Respondent) Liana Bobolas (Third Respondent) Representation: COUNSEL: A Pickles and J Reid (Applicant) C Bolger (First Respondent) E Bobolas (Second Respondent) Liana Bobolas (Third Respondent)

SOLICITORS: Wilshire Webb (Applicant) N/A (Respondents) File Number(s): 18/50888

ex tempore Judgment 1. By notice of motion dated 2 January 2019 the Second and Third Respondents seek orders varying a costs order made by me on 19 December 2018. I made the order at the same time as dismissing their notice of motion filed 11 December 2018. I heard that notice of motion on 14 December 2018. 2. An affidavit sworn 2 January 2019 by Ms Liana Bobolas firstly stated that I erred in making a costs order in favour of the Council. Secondly, I erred in making a costs order without the words "as agreed or assessed". Thirdly, I erred in allowing the Council time during the hearing of the Notice of Motion on 14 December 2018 to write and rely on an affidavit of Mr Schilt a council officer. This was procedurally unfair. Fourthly, if in the alternative a costs order was correctly made against the Respondents I should have restricted costs to that of a junior barrister. The notice of motion was not complex and therefore the presence of a senior counsel, junior counsel and solicitor was not necessary. Fifthly, the Council engaged in disentitling conduct in that they did not inform the Respondents that they would not be available until 18 January 2019 to perform the relevant clean-up work. Further the Council began and/or continued the proceedings with the intention of selling the Respondents' property, incurring costs for no purpose. Additionally the Council sought to sell the Respondents' property during the time allowed for the clean-up works to be done by the Respondents. This prevented the Respondents from completing these works since funds had to be raised. Sixthly, significant submissions were not considered by the Court being a facsimile sent by the Second and Third Respondents on 19 December 2019. 3. The costs order made on 19 December 2018 stated that the Second and Third Respondents were to pay the Council's costs of the notice of motion dated 11 December 2018. I made that order because the Respondents were unsuccessful in obtaining an extension of time of earlier orders made by me concerning the removal of waste material from the premises in Waverley within a specified timeframe. 4. The Respondents seek four variations of the costs order: 1. that the costs be "as agreed or assessed"; 2. be limited to the payment of a junior barrister only; 3. the costs for the preparation of an affidavit of Mr Schilt council officer on 19 December 2019 in the amount of two hours should not be paid under the costs order; and 4. in the alternative to the above a different costs order be made in place of Order 2 that each party pay its own costs.