Byron Shire Council v Cole
[2003] NSWLEC 47
•02/05/2003
>
Land and Environment Court
of New South Wales
CITATION: Byron Shire Council v Cole [2003] NSWLEC 47 PARTIES: APPLICANT:
RESPONDENT:
Byron Shire Council
ColeFILE NUMBER(S): 40084 of 2003 CORAM: Bignold J KEY ISSUES: Costs :- in class 4 proceedings which are terminated without any adjudication on the merits. LEGISLATION CITED: Land and Environment Court Rules, Pt 15 r 7 CASES CITED: Hayden Theatres v Penrith Council, (1998) 105 LGERA;
Re The Minister: Ex parte Lai Qin (1997) 186 CLR 622DATES OF HEARING: 05/02/2003 EX TEMPORE
JUDGMENT DATE :
02/05/2003LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
Ms T Howard, Barrister
SOLICITORS
Abbott Tout
in person
SOLICITORS
N/A
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Matter No . . 40084 of 2003
Coram : Bignold J
5 February 2003
BYRON SHIRE COUNCIL
Applicant
v
BOYD COLE
Respondent
JUDGMENT
1. This is a Class 4 application by a Council which was filed in Court on 24 January this year claiming declaratory and injunctive relief in respect of the use of premises known as No 118 Lighthouse Road, Byron Bay.
2. On that occasion, and in granting leave for the filing of the process and its early return, the Duty Judge, Cowdroy J made an ex parte interlocutory or interim order pending the final determination of the case or until further order of the Court that the Respondent by himself, his servants or agents be restrained from using or suffering or permitting to be used the aforesaid premises as a hostel.
3. The Respondent, who appears for himself today, has been a short term lessee of the premises which are developed by a large house and detached second dwelling. The property is owned by Mr O’Connor and the Respondent, entered into a residential tenancy agreement with him for a short term tenancy commencing on 9 December 2002 for a period of 12 weeks that is to expire on 24 February 2003.
4. His Honour directed that the application and affidavits be effected by personal service by 25 January 2003 and made the matter returnable before the Duty Judge on 30 January 2003. On that occasion, there was no appearance by or on behalf of the Respondent and his Honour Cowdroy J granted leave for the Council to approach the Registrar to obtain an early hearing date preferably within the next 14 days upon the basis that the proceedings would be undefended.
5. No doubt, his Honour made that order on the basis of the affidavit sworn by the Council’s Solicitor Paul Vergotis, on 29 January 2003 in which he deposes to the content of a telephone conversation that he had with Mr Cole on that day, that is 29 January 2003. On that occasion, Mr Vergotis asked Mr Cole whether he was aware that the matter was coming back to Court on 30 January 2003 and Mr Cole said that he was but he did not have a Solicitor, did not have any money and that he (Mr Cole) would not be attending Court. He was proposing to leave Byron Bay and he “would not be around”.
6. Mr Vergotis then told Mr Cole that he had instructions to seek a final hearing of the matter at which the Council would also be seeking an order for costs if it was successful. Mr Cole reiterated that he had no money and would not be coming to Sydney to appear in Court. Mr Vergotis suggested that he might obtain some legal advice.
7. That was the background to the allocation for hearing of the case this morning when, as I have indicated, it was anticipated that the Council’s claim to final relief would come before the Court and the Council would invite the Court to entertain the matter ex parte in view of the Respondent’s intimation that he would not be coming to Court. However, as it turned out Mr Cole notified the Court earlier this morning before the appointed hour that he was on his way to Court and wanted the matter to be finally dealt with.
8. The matter came before me earlier in the day when Mr Cole, appearing for himself, outlined his case in resisting the Council’s claims and stated that he himself was in the process of quitting the premises but had to attend to the sale of a number of items of furniture and furnishings which he had brought into the premises, that he would be doing so in the course of this week and by the end of the week he would have vacated the premises.
9. He also informed the Court that in discussions with the owner, Mr O’Connor, he (Mr Cole) had been informed and was aware that Mr O’Connor was desirous of implementing as a development venture with his brother a development consent granted by the Council in April 2001 for the demolition of the existing dual occupancy development on the subject property and its replacement by a detached dual occupancy modern development.
10. Because of other business before the Court, the matter was adjourned for a few hours earlier in the day and Mr Cole was invited to record in a statement or affidavit the essential facts that he wanted to bring to the Court’s attention and if possible to adduce some corroboration from Mr O’Connor, the owner of the premises, of the latter’s intention to take possession of the premises for the purpose of preparing the site for the carrying out the approved dual occupancy or townhouse development.
11. When the matter was before me earlier today, Mr Howard, Counsel for the Council, had intimated that his instructions were to seek to obtain final and permanent relief in the case as well as costs in the proceedings but that he and his instructing Solicitor would investigate the matters that had been raised by Mr Cole when addressing the Court.
12. When the matter resumed hearing this afternoon Mr Cole handed the Court, without objection from the Council a draft affidavit that he had prepared during the adjournment in which he states that he is not using the premises as a hostel. His present use of the premises is directed to the conduct of a garage sale to sell off the furniture that is currently in the premises and that the owner, Mr O’Connor, intended to take possession of the property with a view to preparing the site for the approved development and in that respect, Mr Cole annexed a copy of a facsimile transmission that he had received from Mr O’Connor earlier today.
13. Mr Cole went on to say that the moneys he received from persons residing with him at the Lighthouse Road premises went towards household costs, rent, electricity, phone, furniture, food, etcetera and that people often stayed at the premises as friends or friends of occupants and they would sometimes stay overnight.
14. Mr Howard also obtained during the short adjournment a further affidavit sworn by the Council’s town planner and compliance officer, Patrick Dawson, which deposes to a conversation that he had earlier today with the owner of the property, Mr O’Connor, which confirms what Mr Cole had informed the Court of Mr O’Connor’s desire to take possession of the premises with a view to preparing them for the approved development.
15. It was in these circumstances that Mr Howard candidly stated that he could not in the circumstances claim permanent relief and that there would be no utility in the making of any injunctive order or indeed the making of any declaration concerning the past use during Mr Cole’s brief tenure of the premises and that the only remaining question was that concerning the costs of the proceedings.
16. In the course of presenting his submissions it was agreed that the appropriate order in the case is to dismiss the application by consent but to continue the interlocutory injunction made by Cowdroy J on 24 January 2003 until Monday of next week, 10 February 2003 by which time Mr Cole will have surrendered his tenancy and vacated the premises.
17. The question of costs in the proceedings has been debated and Mr Howard on behalf of the Council has sought an order for costs. Mr Cole has resisted any such order. In view of the outcome in the proceedings and their very short history involving the emergence of the proceedings only on 24 January 2003 and the interlocutory injunction being granted on an ex parte basis with the Respondent Mr Cole not having had an opportunity to contest the case raised against him.
18. In the light of the outcome in the case, it is no longer profitable to examine the merits of the case either in terms of the claims and basis for claims made by the Council for declaratory and injunctive relief or on the basis of Mr Cole’s denial that his use of the premises for that brief period of time in December and January involved either a breach of the planning law or a violation of a personal undertaking that he had proffered to the Council in mid January concerning that use.
19. The exercise of the Court’s discretion on costs in circumstances such as those presented by the present case is, I think, to be determined in accordance with a settled line of authority which has particularly manifested itself in this Court by its consistent application of the decision of McHugh J sitting singly in the High Court in Re The Minister: Ex parte Lai Qin (1997) 186 CLR 622.
20. The principle to emerge from that decision which has been consistently followed in this Court is that it is not appropriate in a case such as the present where circumstances bringing the case to an end have not required an adjudication on the merits of the case, for a hypothetical inquiry to be made as to the likely merits outcome simply for the purpose of costs.
21. The principle enunciated by his Honour, though subject to exceptions, is that in circumstances where cases are disposed of without the necessity for a hearing on the merits will normally involve a costs consequence of no costs order being made if the Court is satisfied that the parties acted reasonably in commencing and defending and continuing the proceedings until the circumstance giving rise to the termination of the case arose.
22. There is a Rule of Court which Mr Howard has referred to, namely Part 15 r 7 which states that the Court may order the respondent to pay the costs of the proceedings where the respondent satisfies or cause to be satisfied the claim of the applicant after the proceedings have been commenced.
23. In my decision Hayden Theatres v Penrith Council, (1998) 105 LGERA at 230, I gave consideration as to the meaning and effect of that particular power and what is involved in the notion of “satisfying the claim”.
24. In the present case, I cannot be satisfied on the evidence that the proceedings and the existence of the proceedings have induced the Respondent to satisfy the Council’s claim. As the proceeding came to its due conclusion, the Court was left in a state of allegation and substantiation thereof by the Council by its evidence which remained untested together with the denial by the Respondent that any breach of relevant planning law had been involved in his use of the premises.
25. Supervening acts seem to be the best explanation for how it comes about that Mr Cole is now leaving the premises. I refer here mainly to the evidence concerning the land owner’s decision to implement the approved dual-occupancy development on the site requiring the demolition of the existing buildings.
26. In the circumstances, I am of the opinion that it is just and reasonable in the present case that there be no order for costs and that each party bear his own costs.
27. For all of the foregoing reasons, therefore I make the following orders.
1. By consent the application is dismissed.
2. The Interlocutory Injunction made by Cowdroy J on 24 January 2003 is to continue until Monday 10 February 2003 when it will by force of this order be discharged.
3. Each party bear its own costs in the proceedings.
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