Auburn Council v Hiken Group Pty Limited

[2007] NSWLEC 753

Land and Environment Court

of New South Wales

CITATION:	Auburn Council v Hiken Group Pty Limited [2007] NSWLEC 753
PARTIES:	APPLICANT Auburn Council RESPONDENT Hiken Group Pty Limited
FILE NUMBER(S):	40601 of 2007
CORAM:	Pain J
KEY ISSUES:	Costs :- whether discretion to award costs should be exercised where there is no final hearing - whether consent orders made which effectively met applicant's case
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s121
CASES CITED:	Kiama Council v Grant (2006) 143 LGERA 441 ; Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia: Ex Parte Lai Quin [1997] 186 CLR 622
DATES OF HEARING:	15 November 2007
EX TEMPORE JUDGMENT DATE:	15 November 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr S Flanigan SOLICITOR Deacons RESPONDENT Mr T Hale SC SOLICITOR Colin Biggers & Paisley

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

15 November 2007

40601 of 2007 Auburn Council v Hiken Group Pty Limited

EX TEMPORE JUDGMENT

1 Her Honour: This is an application by the respective parties in this case for an award of costs in their favour. The substantive proceedings related to the Council’s application for a declaration and orders enforcing an emergency order issued under s 121B of the Environmental Planning and Assessment Act 1979 (the EPA Act) to the Respondent. There was no appeal against the emergency order under s 121ZK of the EPA Act.

The premises

2 The proceedings relate to Lot 1 DP106759 located at 57-72 Queen Street, Auburn (the premises). The premises comprise extensive retail and commercial space, including basement parking for approximately 126 cars. Two of the larger retail spaces are leased to Woolworths and Big W.

3 The premises form part of a larger complex comprising five residential towers and associated development, containing approximately 471 residential apartments (collectively known as “Auburn Central”). Auburn Central was completed in 2005. The Applicant was the certifying authority and issued construction certificates and occupation certificates for the premises and Auburn Central.

The emergency order

4 At 4.30pm on 22 June 2007 the Respondent was served with an emergency fire order relating to the premises. The emergency order was directed only to the premises and required the Respondent to carry out a range of fire-related assessment, rectification and reporting tasks relating to the premises (identified as items 1-6 in the emergency order). These tasks, in the main, were required to be completed within three days of the order (specifically in relation to items 1, 2, 3 and 5(a) of the order).

YOU ARE HEREBY ORDERED TO:

(a) Locating and carrying out such repairs as are necessary to rectify all the loans and faults shown on the Fire Indicator Panel and restoration of the system into normal operation.

(b) Restoration of the Fire Brigades Alarm Signalling Equipment to the de- isolated state

(c) Certification of the smoke detection and alarm system in accordance with the original design and installation standard (including Building Code of Australia (BCA) Spec. E2.2a & Australian Standard AS1670.1 – 1995 & AS1668.1 – 1998 as modified by SSL Reports dated 7 May 2003 No XR0728/R1, Version V03 and dated 11 May 2004, No XR0728/R3, Version V05).

2. Make all fire doors within the Premises fully operational including:

(a) Doors to all fire-isolated experts and garbage rooms are to be inspected, upgraded and/or replaced to be compliant of fire-rated doors and certified to confirm they are in accordance with Australian Standard (AS) 1905.1-1997 (existing doors) and AS 1905.1-2005 (replaced doors) in order to eliminate excessive gaps, in-operative door closers, missing or faulty door latches, missing fire door tags.

(b) Door latches to all fire-isolated to stair doors are to be inspected, upgraded and certified to be compliant with, and certified to confirm they are in accordance with, BCA Clause D2.21 as a single handed downward action lever device.

3. Make all sprinkler heads within the premises fully operational including:

(a) Spacing below and around heads.

(b) Replacing any defective heads including those rendered defective by overspray paint.

4. Implement service and maintenance procedures for all fire safety systems and equipment within the premises in accordance with AS 1851-2005.

5. Submit to Council:

(a) Certification confirming the above works have been undertaken and completed by suitably qualified practicing fire services consultants

REASONS FOR THE EMERGENCY ORDER: (s121L of the Act)

1. The fire safety measures at the Premises are inadequate due to a lack of maintenance.

2. Due to the inadequate fire safety measures at the Premises, a fire has resulted or may result causing grave risk for the safety of the occupants of the Premises and damage to the Premises.

3. The inadequate fire safety measures at the Premises continue to be life threatening for the occupants of the Premises and, in the event of fire or emergency incident, any responding emergency personnel, due to lack of maintenance of the fire measures at the Premises.

5 For this costs hearing the parties tendered a bundle of documents and the minutes of a meeting held on 20 September 2007 at the premises when a fire systems test was conducted. The longer affidavit of the Council officer Mr Lawrence dated 28 June 2007 was relied on in part by the Respondent.

Chronology

6 A chronology of the proceedings was filed in Court at my request by the Council which I incorporate.

22 June 2007 Council issued Emergency Order pursuant to section 121B of the Environmental Planning and Assessment Act 1979. Emergency Order contained 5 orders.

28 June 2007 Council commenced Class 4 proceedings in the Land and Environment Court together with a motion seeking leave for short service and that the matter be listed for an urgent interlocutory hearing before a judge on Wednesday 4 July 2007. The Registrar granted the motion in chambers.

4 July 2007 Matter listed before Lloyd J. The Respondent provided a schedule of works and time to address each of the orders in the Emergency Orders.


The schedule of works included repair and rectification of the FIP, restoration of the FIP system into normal operation, restoration of Fire Brigades alarm signalling equipment to the de-isolated state, certification of the smoke detection and alarm system, making all fire doors within the premises fully operational and making all sprinkler heads within the premises fully operational.

Lloyd J noted that the parties had agreed to a schedule of works and stood the matter over for further directions hearing on 20 July 2007 and granted liberty to restore on 24 hours’ notice. Costs were reserved.

20 July 2007 Matter listed before Biscoe J.


Parties advised the Court that some work had been done, including rectification/replacement of fire doors and sprinkler heads but that more work was required.

Parties handed up Consent Orders detailing in orders 1-8 further required works and inter systems testing.

By consent Biscoe J made the orders and listed the matter for further mention before a judge on 27 July 2007 and noted that it was likely that the matter would be finally disposed of on that occasion.

27 July 2007 Matter listed before Jagot J. By consent, Jagot J directed that the matter be stood over to a further mention on 3 August 2007.

Mr Perkins provided the Applicant's representatives with a copy of a certificate from the Mr Gary Nenadovich.

3 August 2007 Matter listed before Talbot J. Parties sought to have the matter listed for hearing.


Talbot J directed the Applicant to file and serve any further evidence by 13 August 2007 and the Respondent to file its evidence by 27 August 2007. Any evidence in reply to be filed by 4 September 2007.

The matter was subsequently listed for hearing on 11 September 2007.


11 September 2007 Matter listed for hearing before Pain J. Matter adjourned for mention at 9.15am on 13 September to allow intersystems testing to take place at 2pm and for a joint report to be filed and served.

13 September 2007 Mention before Pain J. Matter stood over to mention on 21 September to allow request and response to particulars and further intersystem testing.

14 September 2007 Letter to Applicant from Respondent seeking particulars.

20 September 2007 Further intersystems test at Auburn Central. Parties prepare minute of meeting after testing.
Applicant responds to Respondent’s request for particulars.

21 September 2007 Mention before Pain J. Parties hand up minute of meeting and advise Court that orders 2 and 3 have been generally satisfied. Only issue remaining is costs. Directions in relation to timetable and obtaining a hearing date for costs argument.

7 Of particular relevance in terms of the arguments is that the emergency order served on 22 June 2007 provided only three days for compliance with most of the order, the Class 4 proceedings were commenced without further notice to the Respondent on 28 June 2007, Lloyd J noted that the parties had agreed a schedule of investigation and work which referred specifically to orders 1 to 3 of the emergency order. By orders made on 20 July 2007 Biscoe J made further orders which related to the schedule of works noted by Lloyd J and orders 4 and 5 in the emergency order. Order 5 in particular concerned certification of work undertaken and provision of service and maintenance agreements.

8 Following further mentions before the Court two orders made by Biscoe J were in dispute, orders 2 and 3, and these were set down before me for hearing on 11 September 2007. It was ultimately unnecessary that I finally determine the matters because of the way the matter proceeded as between the parties. I stood the matter over at the parties’ request. The parties informed me on a later occasion, 21 September 2007, that there was no outstanding issue apart from costs. I am informed today by the Council that the proceedings can be dismissed as there are no outstanding issues apart from any costs order I make.

Council’s submissions

9 As the Council has obtained compliance with the orders sought in the emergency order served on the Respondent in the course of the proceedings, then its objectives in commencing the proceedings have been met. The orders not complied with which became orders 2 and 3 made by Biscoe J on 20 July 2007 were also complied with subsequently in relation to the provision of a certificate sufficient to satisfy order 3. (The Council did not rely on the full inter-system test conducted on a without prejudice basis which was required by order 2 made by Biscoe J).

Respondent’s submissions

10 The emergency order was unreasonably served on the Respondent without notice and provided an unreasonably short time for compliance of three days. It also sought unreasonably for work to be done beyond the Respondent’s premises as it concerned possible faults in areas outside the Respondent’s premises. The Council should have given notice and told the Respondent of its concerns before issuing the emergency order. Further the Class 4 proceedings were commenced without notice. The Respondent has acted reasonably in agreeing with the schedule of works noted by Lloyd J and the orders made by Biscoe J. It has undertaken the orders on a consent basis and without admission. The orders of the Court were fully complied with by 27 July 2007 when a certificate required by order 3 was served on the Council. If no costs are ordered to be paid by the Respondent up to this point then the Respondent’s costs should be paid from that date.

Finding

11 Costs in Class 4 proceedings are generally awarded on the basis that costs follow the event. In this case there has been no final determination of the issues by the Court. In Kiama Council v Grant (2006) 143 LGERA 441 Preston CJ identified a number of cases where costs have had to be determined without the benefit of a final hearing which determined the outcome. At [80] he held:

The principles that emerge from these cases are that in a civil enforcement or judicial review case where there has been no hearing on the merits:

(a) where one party effectively surrenders to the other party by:

(i) discontinuing without the consent of the other party; or
(ii) giving undertakings to the Court or submitting to the Court making orders against the party substantially in the terms or to the effect claimed by the other party;
the proper exercise of the costs discretion will ordinarily be to make the usual order as to costs, unless there is disentitling conduct on the part of the other party; and

…

12 As outlined in Kiama several cases have considered circumstances where the Court made orders by consent which in whole or part satisfied the claim. In this case the Council is seeking costs because the matters have been resolved between the parties in the course of the litigation in such a way that the purpose in bringing the proceedings has been achieved. The proceedings may be dismissed as there are no outstanding issues in the Council’s view.

13 It is not appropriate in a costs application to determine who would have succeeded had the matter gone to a final hearing, see Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia: Ex Parte Lai Quin [1997] 186 CLR 622 per McHugh J at 624. It appears from the affidavit of Mr Lawrence that there was a legitimate basis for issuing the emergency order and I do not consider there is evidence to suggest there was unreasonable behaviour by the Council in issuing the order. There is no requirement under the EPA Act for notice to be given of an emergency order before it is issued. Any work required by an order can only relate to the premises the order is issued in relation to. In other words, I do not consider the emergency order required work to be done outside the Respondent’s premises. In the absence of an appeal being filed against the s 121B order I consider I should accept its contents. By its argument the Respondent was really seeking to pursue in this costs hearing a judicial review argument concerning legal errors in the decision to issue the emergency order. It is not appropriate in this costs application that I determine whether the emergency order was validly issued. Nor does the conduct of the litigation outlined above in the chronology suggest any such argument was intended to be raised by the Respondent. Rather, investigation and work has been undertaken by the Respondent in the course of litigation as enforced through the court orders made by consent by Biscoe J on 20 July 2007. While I have not had to finally resolve issues concerning orders 2 and 3 made by Biscoe J, the Council relies on the provision of the certificate on 27 July 2007 as compliance with order 3.

14 I do not take into account the conduct and result of the fire systems test undertaken on a “without prejudice” basis by the Respondent in considering the litigation. That appears to fall outside the scope of the emergency order giving rise to these proceedings.

15 The consideration of costs must necessarily focus on the conduct of the litigation. In relation to the commencement of proceedings, while there was no notice of these Class 4 proceedings I accept the Council’s submission that its behaviour was consistent with the need for urgency given the non-compliance with the emergency order. The proceedings were commenced and an order for short service and for an urgent hearing of an interlocutory application was made. Subsequently the parties have agreed to orders which have resulted in the Council’s emergency order being largely addressed. I consider that the circumstances warrant an award of costs in the Council’s favour and will so order.

16 The Court makes the following orders:

1. The proceedings are dismissed.
2. The Respondent is to pay the Applicant’s costs as agreed or assessed.
3. Exhibits to be returned.