Cai v Fairfield City Council

[2022] NSWCA 243

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Cai v Fairfield City Council [2022] NSWCA 243
Hearing dates:	29 November 2022
Date of orders:	02 December 2022
Decision date:	02 December 2022
Before:	Macfarlan JA at [1]; Brereton JA at [7]
Decision:	Application for leave to appeal refused with costs
Catchwords:	APPEAL — application for leave to appeal — no arguable basis for proposed appeal — no identification of a ground for challenging orders below
Legislation Cited:	Land and Environment Court Act 1979 (NSW), ss 56A, 57
Category:	Principal judgment
Parties:	Wei An Cai (First Applicant) Xi Hao Ma (Second Applicant) Fairfield City Council (Respondent)
Representation:	Counsel: Applicants (Self-represented) R White (Respondent) Solicitors: Houston Dearn O’Connor (Respondent)
File Number(s):	2022/169288
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 1 Citation: [2022] NSWLEC 58 Date of Decision: 13 May 2022 Before: Preston CJ at LEC File Number(s): 2021/333619

JUDGMENT

1. MACFARLAN JA: This is an application under s 57(4) of the Land and Environment Court Act 1979 (NSW) for leave to appeal from the judgment of Preston CJ at LEC dated 13 May 2022 in Cai v Fairfield City Council [2022] NSWLEC 58. By that judgment, his Honour dismissed an appeal pursuant to s 56A of that Act from orders made by an Acting Commissioner in Class 1 of the Land and Environment Court’s jurisdiction. The decision of the Acting Commissioner concerned the present applicants’ challenge to a Demolish Works Order made by the respondent Council in relation to a building in the rear yard of the applicants’ property at Cabramatta.

2. An appeal to this Court under s 57 can only be brought against an order or decision on a question of law. Leave to appeal is required where, as here, the challenged decision was made on an appeal under s 56A (see s 57(4)(c)). The applicants’ proposed grounds of appeal to this Court do not however identify any question of law of any possible materiality to the correctness of Preston CJ’s decision. The first two of the four grounds express doubts as to whether the lawyers purporting to act for the Council were authorised to do so and the fourth ground appears to relate to the same topic.

3. The third ground was the only ground relied upon in oral argument before this Court. It relates to a claim made by the Council’s lawyers by letter of 19 May 2022 for payment of the costs that Preston CJ ordered on 13 May 2022 that the present applicants pay to the Council. The letter indicated that the Council sought “to be compensated for costs incurred in these proceedings in the amount of $7000.00” and that failing the present applicants’ agreement to pay that amount, proceedings would be commenced for an assessment of the Council’s costs in the sum of $8,585.44. Enclosed with that letter was a tax invoice in the latter amount addressed to the Council.

4. The applicants claim that they are not bound to pay either amount sought by the lawyers in the absence of proof that the lawyers are authorised by the Council to receive the costs, and that they certainly are not bound to pay any amount at all to the lawyers’ own bank account.

5. As indicated by the letter, the applicants are however at liberty not to accept the proposal in the letter and to await the foreshadowed assessment of costs. On such an assessment, the applicants would be entitled to seek evidence of the lawyers’ retainer by the Council. More importantly for present purposes, the applicants’ submissions concerning the lawyers do not form any arguable basis for an appeal against Preston CJ’s decision. They do not even purport to identify or constitute a ground for challenging either his Honour’s decision to dismiss the s 56A appeal or the consequent costs order.

6. In these circumstances, the applicants have not identified any basis for an appeal, much less one with any prospect of success. Leave to appeal should accordingly be refused, with costs.

7. BRERETON JA: None of the four grounds stated in the draft notice of appeal impugns any part of the decision of Preston CJ at LEC, let alone on a question of law. Essentially they question the retainer of the respondent’s solicitors, but although the applicants assert that this had been raised at an earlier stage, it does not appear that any formal challenge to their retainer was ever made and so the Court below was never required to decide that question. While they appear to dispute their liability for the amount claimed from them under the costs order made by Preston CJ of LEC, they do not impugn the costs order itself, and the quantum of their liability under it is a matter for assessment if not agreed. I agree with Macfarlan JA that leave to be appeal should be refused, with costs.

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Decision last updated: 02 December 2022