Abbott v Proprietors Strata Plan 46094

[1999] NSWLEC 140

Land and Environment Court

of New South Wales

CITATION:	Abbott -V- Proprietors Strata Plan 46094 [1999] NSWLEC 140
PARTIES	APPLICANT: Abbott
RESPONDENT: Proprietors Strata Plan 46094
NUMBER:	40227 of 1998
CORAM:	Bignold J
KEY ISSUES:	Costs :- Class 4 proceedings not requiring an adjudication on the merits because subject matter of the claim has ceased to exist. Whether Applicant entitled to costs
LEGISLATION CITED:	Land and Environment Court Act 1979: s 69 Land and Environment Court Rules 1996 Pt 15 r 7
DATES OF HEARING:	04/30/1999
EX TEMPORE JUDGMENT DATE:	04/30/1999
LEGAL REPRESENTATIVES:	APPLICANT: Mr D.R. Parry, Barrister SOLICITORS: Taylor Kelso RESPONDENT: Mr D. Kunde, Secretary to the Body Corporate, as Agent SOLICITORS: N/A

JUDGMENT:

IN THE LAND AND Matter No. 40227 of 1998

ENVIRONMENT COURT OF Coram: Bignold J.

NEW SOUTH WALES 30 April 1999

ABBOTT

Applicant

v.

PROPRIETORS OF STRATA PLAN 46094

Respondent

JUDGMENT

Bignold J:

1. This is an application for costs in class 4 proceedings brought by the Applicant against the Respondent being the Proprietors of Strata Plan 46094 which comprises a residential flat building premises known as 13-15 Sutherland Crescent, Darling Point.

2. The proceedings were filed in the Court on 2 December 1998. They claimed a declaration that the air conditioner condensation unit affixed upon the roof of the aforesaid building had been affixed without the consent of the relevant local Council, namely the Woollahra Council, and a mandatory order requiring the Respondent to demolish and remove the air conditioner condensation unit.

3. The matter has been before the Court on a number of occasions following the filing of the action but no adjudication on the merits of the case has been entered upon and it is now not necessary to enter upon such an adjudication because the subject matter of the claims has disappeared in circumstances presently to be related.

4. Accordingly, the only issue before the Court is the issue of costs. The Applicant's claim for costs is principally founded upon the provisions of the Rules of Court and in particular, Pt 15, r 7 which is a rule in the following terms.

The Court may order the Respondent to pay the costs of the proceedings where the Respondent satisfies or causes to be satisfied the claim of the Applicant after the proceedings have been commenced.

5. An alternative basis for the order for costs is made by reference to the general and broad discretionary power to award costs vested in the Court by the Land and Environment Court Act 1979 (s 69).

6. The claim for costs based upon Rules of Court, Pt 15, r 7, has been, I think, factually established by the facts adduced in evidence and not in dispute, in the sense that the claim to mandatory injunction was made in the originating process at a time when it is admitted that the relevant air conditioner condensation unit had been affixed to the rooftop of the building without the requisite consent of the Council and that it was following the commencement of the proceedings that the Respondent has caused that claim to mandatory injunction to be satisfied by the removal from the rooftop of the air conditioning condensation unit, that removal having occurred subsequent to the Council's decision on a development application made by the Respondents on 17 December, 1998. The Council's decision on such application being to refuse consent, was made some three and a half months later.

7. It was following the refusal of the application that Mr Graham, the owner of the residential unit serviced by the relevant structure caused it to be removed from the rooftop. Accordingly, the claim made under Pt 15, r 7 properly invokes the power. However the power is discretionary as was pointed out by the Respondent who was represented by the Secretary of the Owner's corporation, Mr Kunde.

8. The Respondent submits that the discretion in this case ought not be exercised because of the circumstances of the case and in particular, consideration of the background to the commencement of the litigation and a consideration of the circumstances that came into play following the commencement of the litigation.

9. These matters are not in dispute and can be briefly noted as follows. Mr Graham, the owner of Lot 1 in the relevant Strata Plan, obtained development consent from Woollahra Council to an application to erect a glass roofed room over the balcony space of his unit which is a penthouse unit in that building. Building works were commenced to implement this approval in August, 1998 and were completed in September of that year. As part of the building works, so undertaken, a split system air conditioning unit was installed at the premises on 8 September 1998 and the condenser unit was located on the roof, adjacent to the new addition and placed in a position alongside other exhaust fans and ventilation shafts utilised in the building.

10. A matter of a day or two following the installation of the condenser unit, the Council received a complaint from the Applicant's wife. The Council officer inspected the premises on 9 September and advised the builder that the air conditioning unit required approval and that a development application should be lodged.

11. Mr Graham, in his affidavit, sworn on 23 April 1999, states that neither himself nor the Proprietors of the Strata Plan were aware of the Council's requirement. (I should interpose that a number of affidavits were read relevant to the issue before me today and none of the deponents was required for cross-examination or was cross-examined.)

12. There is very little in dispute in terms of the facts asserted in the affidavits and the one matter which is in dispute according to the affidavit material, namely the precise acoustical impact of the condensation unit, has no bearing on my consideration of the question of costs.

13. Following the Council Inspector's inspection of the premises and conversation with the builder, on 15 October 1998, the Council issued a stop work notice and required a development application to be lodged. As Mr Graham deposes in his affidavit, following receipt of that stop work order, no work was carried out on the air conditioner.

14. The only communication to the Respondent (or for that matter to Mr Graham, the owner of the relevant unit in the Strata Plan) received prior to the filing of the class 4 proceedings in this case was a letter from the Solicitors for the Applicant advising of the Abbott's objection to the condensation unit's presence on the rooftop and advising that they would object to the Council against the continuance of this structure. No conventional letter of demand, advising of proposed or intended legal action was served on the Respondent or on Mr Graham.

15. This is a matter relied upon heavily by the Respondent in support of its ultimate submission that the Court would consider the proceedings prematurely brought by Mr Abbott. The prematurity of the commencement of the proceedings is sought to be answered by Counsel for the Applicant by saying that before the proceedings were commenced on 2 December 1998, no development application as sought by the Council had been lodged by the Respondent or by Mr Graham and that therefore, the Court would adjudge the commencement of the proceedings to be a reasonable action by Mr Abbott.

16. The subsequent history of the case, though not relevant to the question of the prematurity of the claim, significantly, in my judgment, bears upon the question of the legitimacy and propriety of continuing the claim. This is because within two weeks of the proceedings being commenced in the Court, the required development application was lodged with the Council, and more particularly, when the Respondent attended what was the second callover in the proceedings (not having attended the first callover) Mr Graham stated to the Applicant's solicitors in the Court that he would abide by the decision of the Woollahra Council on the then pending development application, saying that he believed that he had acted in full accordance with the Council's instructions.

17. This advice, however, did not persuade the Applicant or his legal advisers to desist pursuing the claim with the consequence, allied with the fact that the Council took what might be thought to be an excessive amount of time in processing the application (some three and a half months) that a third, a fourth and a fifth callover of the proceedings intervened. Whatever be the ultimate determination of the question of costs, it is hard to justify an order in respect of costs incurred at the third, fourth and fifth callover all occurring after the callover held on 29 January 1999 when Mr Graham stated to the Applicant's Solicitor that he would abide by the Council's decision.

18. It is in these circumstances that the Respondent submits that it ought not suffer an order for costs because not only for what they (i.e. the Respondent and Mr Graham in particular) had done in terms of complying with the Council's stop work order but because of all subsequent actions taken on behalf of the Respondent, namely (i) the Council’s demand for a development application had been complied with; (ii) the statement made to the Applicant's Solicitor at the callover on 29 January, that Mr Graham would abide by the Council's decision; and (iii) subsequent to the Council's refusal of the application, Mr Graham, true to his word, removed the offending structure from the rooftop.

19. In these circumstances, the Respondent submits that both it and Mr Graham have acted entirely reasonably in the litigation, and in the events with which the litigation is concerned, to such an extent that the Court would not impose a costs order on them.

20. As I have said, the facts, as I have recited them, clearly bring the Applicant's claim within the purview of the Rules of Court, Pt 15, r 7. However, the facts, as I have recited them, add another important dimension. It is this, that it cannot be inferred from the facts of the case that the Respondent (or Mr Graham in particular) had evinced an attitude of defiance of the law or an attitude of wilful disregard of the Council's authority. On the contrary, having been initially mistaken (innocently) of the necessity for a development approval for what is in truth, a modest scale structure on the rooftop of what obviously is a highly valuable and prestigious building in a highly prestigious residential area in Sydney, the Respondent and Mr Graham, having been alerted of their mistaken understanding concerning the obligation to obtain approval, have set about seeking to obtain it and have abided by an unfavourable determination by the Council, by removing the offending structure. There is simply no suggestion in the evidence of any wilfulness on the part of the Respondent or of Mr Graham, to breach the law or to contest the Council's authority.

21. It is in these circumstances, so the Respondent submits, that the Applicant's conduct in the litigation and in particular, his conduct in bringing the proceedings and in pursuing them, should be viewed and if so viewed, the Court would conclude that although it is true, as a matter of chronology, that the Respondent has satisfied the claim in the proceedings by removing the offending structure, after the proceedings were brought, the true causative effect of the removal of the structure was Mr Graham's willingness to observe and abide by the Council's authority and that the true causal connection is not to be found between the commencement of the proceedings and the removal of the structure, but is more powerfully found in his law abiding approach to the Council's authority.

22. In my view, the Respondent's contention should be accepted and aptly reflects the facts and the reality behind the facts. In saying this, I do not, for a moment, suggest that the existence of the legal proceedings had no bearing upon Mr Graham's ultimate decision to remove the structure after the Council had disapproved his application. Obviously, it was a relevant background fact but I do not believe it was causative in the sense that Pt 15, r 7, contemplates.

23. As I have said on the evidence, I am entirely satisfied that what caused the removal of the offending structure and hence, rendered prosecution of the Applicant's claims in these proceedings entirely unnecessary, was Mr Graham's fidelity to his decision announced to the Applicant's solicitors on the second call over of the case before the Court on 29 January that he would abide by the Council's decision.

24. In these circumstances, I am of the opinion, the discretion available under Pt 15, r 7, ought not be exercised in favour of the Applicant. Of course, I accept the submission made on behalf of the Applicant, that at the time the proceedings had commenced, the offending structure had been in existence for some three months and that for a month and a half before that date, the Council had issued a stop work notice and had called for a development application.

25. As I have noted, the development application was made on 17 December, as it happened some two weeks after the proceedings in this Court were commenced. However, as I have earlier noted, the proceedings were commenced without prior warning or notice. In this sense, it might be fairly said that they were commenced precipitately (particularly in the light of the Respondent’s compliance with the Council’s stop work notice).

26. I accept that Mr Abbott perceived himself to be aggrieved by the existence of this structure and of course, I accept his entitlement to vindicate the law by bringing these proceedings. However, having regard to the nature of the proceedings, and more particularly to the facts upon which they were based, I am of the opinion that a more reasonable approach may have been, to have relied upon his representations (of which there had been at least two, one by himself and one by his architect) to the Council, and to rely upon the Council to enforce the relevant planning laws in this case. This is all the more so given the nature of the offending structure and the nature of the premises upon which it was built.

27. In short, this was not a case of some untoward development occurring on premises willy nilly and without regard to authority and these facts could have been readily elicited before action but they were not.

28. In all the circumstances, I am of the opinion that the Court's wide discretion in relation to costs is properly exercised in the present case by ordering that there be no order as to costs.

29. Accordingly, I order that the application by consent be dismissed and that there be no order as to costs.