Baulkham Hills Shire Council v Stankovic (No 7)

[2010] NSWLEC 159

Land and Environment Court

of New South Wales

CITATION:

Baulkham Hills Shire Council v Stankovic & Anor (No 7) [2010] NSWLEC 159
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Baulkham Hills Shire Council
RESPONDENT
Milovan Stankovic

FILE NUMBER(S):

41243 of 2004

CORAM:

Pain J

KEY ISSUES:

COSTS :- whether Court should exercise its discretion to award costs in relation to three Notices of Motion in civil enforcement proceedings finalised in 2008 - delay in seeking costs

LEGISLATION CITED:

Bankruptcy Act 1966 (Cth)
Civil Procedure Act 2005 s 56, s 58, s 98
Uniform Civil Procedure Rules 2005 r 36.17, r 42.1

CASES CITED:

Baulkham Hills Shire Council v Stankovic & Anor [2005] NSWLEC 110
Baulkham Hills Shire Council v Stankovic (No 2) [2007] NSWLEC 870
Baulkham Hills Shire Council v Stankovic (No 3) [2008] NSWLEC 266
Baulkham Hills Shire Council v Stankovic (No 5) [2008] NSWLEC 327
Baulkham Hills Shire Council v Stankovic (No 6) [2010] NSWLEC 33

DATES OF HEARING:

12 March 2010

 
DATE OF JUDGMENT: 

30 August 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Pearce (solicitor)
SOLICITOR
The Hills Shire Council

RESPONDENT
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

30 August 2010

41243 of 2004 Baulkham Hills Shire Council v Stankovic & Anor (No 7)

JUDGMENT

1 Her Honour: This matter has a lengthy history. On 22 March 2005 I made a declaration and orders restraining the use of the First Respondent’s property in Kellyville as a junkyard. The 2005 orders were subsequently amended in 2007. As outlined at [1] of Baulkham Hills Shire Council v Stankovic (No 3) [2008] NSWLEC 266 (Stankovic No 3) these proceedings were originally commenced against Mr Milovan Stankovic as First Respondent and Ms Milka Stankovic as Second Respondent. As the orders sought by the Council from the outset of the proceedings only concern Mr Stankovic he is the only relevant Respondent.

2 The matter has come before the Court a number of times since orders were first made in 2005. The Council is seeking in its Amended Notice of Motion filed 3 February 2010 a costs order in relation to three Notices of Motion as follows:

1. An order that the First Respondent pay the costs of the Applicant in respect of the Applicant’s Notice of Motion dated 22 November 2007, as agreed or assessed.
2. An order that the First Respondent pay the costs of the Applicant in respect of the First respondent’s Notice of Motion dated 4 December 2007, as agreed or assessed.
3. An order that the First Respondent pay the costs of the applicant in respect of the Applicant’s Notice of Motion dated 11 February 2008, as agreed or assessed.
4. Costs.

3 An affidavit of Mr Pearce, solicitor for the Council, dated 4 December 2009 was read. The affidavit identifies the three motions in relation to which costs are sought in this Notice of Motion and the relevant orders or findings made by the Court which the Council seeks to enforce in relation to costs.

Prayer 1 of the Notice of Motion filed 3 February 2010

4 Prayer 1 refers to the Council’s Notice of Motion dated 22 November 2007 which sought an order that Council officers enter the Respondent’s property for the purpose of determining whether court orders had been complied with. The Court made the following orders on 30 November 2007:

1. The Applicant by its officers enter upon the First Respondent’s property known as Lot B President Road, Kellyville on 3 December 2007 at 3.00pm for the purpose of inspection to determine the present position in relation to the court’s Orders made on 6 February 2007 and in accordance with the conditions for access and inspection listed in Schedule A.
2. Costs reserved.

Prayer 2 of the Notice of Motion filed 3 February 2010

5 Prayer 2 refers to a Notice of Motion dated 4 December 2007 filed on behalf of the Respondent by his then solicitor seeking orders setting aside orders made by me on 6 February 2007 which amended the original orders made in 2005, inter alia. In Baulkham Hills Shire Council v Stankovic (No 2) [2007] NSWLEC 870 (Stankovic No 2) delivered on 6 December 2007 I dismissed the Respondent’s Notice of Motion. The Council is now seeking an order for payment of its costs of that motion in prayer 2 of the Notice of Motion filed 3 February 2010. There is no mention of costs in relation to the Notice of Motion in Stankovic No 2.

Prayer 3 of the Notice of Motion filed 3 February 2010

6 Prayer 3 refers to a Notice of Motion dated 11 February 2008 filed by the Council seeking an order that its officers be able to enter the Respondent’s property to prepare an inventory of all materials on site in accordance with conditions for access and inspection, and costs of the motion. Orders were made by the Court on 19 February 2008 that inspection of the Respondent’s property should occur on a certain date and in accordance with specified condition. Costs were reserved.

Council’s submissions

7 The Council submits that as it was successful in obtaining orders in relation to its two Notices of Motion dated 22 November 2007 and 11 February 2008 its costs of those motions ought be paid by the Respondent.

8 The Council also submitted that it was successful in resisting the Respondent’s Notice of Motion dated 4 December 2007 as found in Stankovic No 2. The Council’s solicitor submitted that, to the extent costs have not been referred to or orders made, that was an accidental slip by the Court that can be corrected by the Court on its own motion at anytime under the slip rule provision in r 36.17 of the Uniform Civil Procedure Rules 2005 (the UCPR). If corrected in this way an order that costs be reserved can be made now and costs awarded as the Council was successful in resisting the Respondent’s Notice of Motion.

Respondent’s submissions

9 The Respondent representing himself opposed any costs order being made. The Respondent filed a Notice of Motion seeking an order that the Council’s Notice of Motion be stood over pending an appeal inter alia. The Respondent’s Notice of Motion was opposed by his trustee in bankruptcy and I did not allow the motion to proceed; Baulkham Hills Shire Council v Stankovic (No 6) [2010] NSWLEC 33 (Stankovic No 6).

Finding

10 The costs sought by the Council concern three Notices of Notion filed in the course of proceedings taken by the Council in the Court’s civil enforcement jurisdiction in Class 4 proceedings. Rules concerning costs are contained in the Civil Procedure Act 2005 (the CP Act) and the UCPR. The Court has broad discretion to award costs under s 98 of the CP Act. Rule 42.1 of the UCPR states that:

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

11 The usual rule in Class 4 proceedings is that costs follow the event. The Council was successful in obtaining the orders sought in its two Notices of Motion dated 22 November 2007 and 11 February 2008. It also successfully opposed the orders sought in the Respondent’s Notice of Motion dated 4 December 2007. Whether costs ought be awarded must be decided in each case based on the particular circumstances before the Court. The Notices of Motion in relation to which costs are sought by the Council were decided a considerable time ago, on 30 November 2007, 6 December 2007 and 11 February 2008 respectively. The last substantive decision made was on 18 September 2008 in Baulkham Hills Shire Council v Stankovic (No 5) [2008] NSWLEC 327 (Stankovic No 5) in relation to the Respondent’s Notice of Motion dated 25 November 2008. A costs order in the Council’s favour in relation to the motion of 25 November 2008 was made on 19 December 2008. The Court file was marked completed on 31 December 2008.

12 The Council’s Notice of Motion now before me was filed on 9 December 2009, approximately a year after the file was marked completed. The Notices of Motion in relation to which costs are now sought were finalised on 30 November 2007, 6 December 2007 and 19 February 2008. I consider there has been delay in making these applications for costs by the Council. No explanation for the delay has been provided by the Council through its solicitor. Delay in finalising proceedings including resolving issues of costs is undesirable and counter to the just, quick and cheap resolution of proceedings, the overriding purpose of the CP Act as found in s 56. Section 58 requires a court to act in accordance with the dictates of justice in making any order of a procedural nature inter alia. While there is no specific time frame in which costs must be sought it is highly desirable that this be done sooner rather than later, certainly within a matter of weeks or months, rather than a year or more after a matter is finalised.

13 I am concerned about fairness to the Respondent in these circumstances. The Respondent is a litigant in person, elderly and has been engaged in several different court proceedings at various times in this and other courts without the benefit of legal advice. He had a solicitor for a limited period in 2007 only. I am aware from the Notice of Motion the Respondent filed and which I considered on the same date of the hearing of the Council’s Notice of Motion that he has been declared bankrupt on the application of the Council in relation to a costs order made by the Court on 22 March 2005 following judgment in the original substantive matter, Baulkham Hills Shire Council v Stankovic & Anor [2005] NSWLEC 110 (Stankovic No 1). As noted above in par 9, I did not allow that motion to proceed in light of the application of the trustee in bankruptcy and the provisions of the Bankruptcy Act 1966 (Cth).

14 In these circumstances I am not minded to exercise the discretion I have under the slip rule in r 36.17 of the UCPR to make an order for the reservation of costs in Stankovic No 2 delivered on 6 December 2007. Such corrections are intended for clerical mistakes or errors arising from accidental slips or omissions. I do not think this represents such an error in these circumstances given the Respondent is a litigant in person and the event is now some years ago. Nor will I order the Council’s costs of the Respondent’s Notice of Motion the subject of that judgment be paid as prayer 2 of the Notice of Motion seeks.

15 I do not consider it appropriate for the same reason of delay to award costs in the Council’s favour in relation to the two other Notices of Motion dated 22 November 2007 (prayer 1) and 11 February 2008 (prayer 3). No costs order is necessary in the circumstances.

Order

16 The Court makes the following order:

The Council’s Amended Notice of Motion filed 3 February 2010 is dismissed.

31/08/2010 - typographical error - Paragraph(s) 3