City of Sydney Council v Baskaya

[2006] NSWLEC 585

Land and Environment Court

of New South Wales

CITATION:

City of Sydney Council v Baskaya [2006] NSWLEC 585

PARTIES:

APPLICANT:
City of Sydney Council

RESPONDENTS:
Halil Baskaya
Nurettin Karatas

FILE NUMBER(S):

40398 of 2006

CORAM:

Biscoe J

KEY ISSUES:

Costs :- Class 4 declaratory and injunctive proceedings concerning construction of a shop without obtaining a construction certificate – respondents satisfied applicant’s claim only after proceedings were commenced – order for costs made in favour of applicant

LEGISLATION CITED:

Land and Environment Court Rules 1996 Pt 15 r 7

DATES OF HEARING:

25/08/2006

EX TEMPORE JUDGMENT DATE:

08/25/2006

LEGAL REPRESENTATIVES:

APPLICANT:
Ms P Whitford, solicitor
SOLICITORS
Maddocks

RESPONDENTS:
N/A
SOLICITORS
JDK Legal

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

25 August 2006

40398 OF 2006

CITY OF SYDNEY COUNCIL v HALIL BASKAYA AND ANOR.

JUDGMENT

HIS HONOUR

:

1 These proceedings were commenced in May 2006 by the City of Sydney Council against two respondents. The substantive proceedings have been resolved and the only outstanding issue is that of costs.

2 In the substantive proceedings, a declaration was sought pursuant to s 124 of the Environmental Planning & Assessment Act 1979 (EPA Act) that the respondents were in breach of that Act by reason of the construction of a retail kebab shop in the entrance/exit lobby of 600-612 George Street, Sydney, for which a prior construction certificate was required, but had not been obtained. An injunction was also sought to restrain further use of the shop until such time as a construction certificate had been issued and the shop had been re-constructed in accordance with the construction certificate and other conditions. Further, a demolition order was sought if a construction certificate was not issued and the shop not reconstructed pursuant to certain orders.

3 Upon the matter being called on for hearing this morning in relation to costs, the solicitor for the council mentioned the matter on behalf of the second respondent and handed me short minutes of order signed by the solicitor for the applicant on the record and by the second respondent, which said that ‘the respondents shall pay the applicant’s costs in the proceedings in the sum of $5,000.00 within 28 days of the date of this order’.

4 The difficulty in acting solely on those short minutes is that, in terms, the order refers to both the respondents, yet the first respondent has not signed or consented to those short minutes, and if an order were made against both respondents each would have a right of contribution against the other.

5 Because of this difficulty, the council then read the affidavit of Stan Kondilios of 16 August 2006 in support of its notice of motion for costs against both respondents. The affidavit indicates that the council had refused a construction certificate for the premises in November 2005 and, later that month, issued a notice of intention to give an order pursuant to s 121B of the EPA Act.

6 When the proceedings were commenced in May 2006, the premises still did not have a valid construction certificate. This was some six months after the council had issued the notice of intention to give an order. Correspondence on this issue had passed between the parties prior to litigation commencing, but to no avail. On 22 June 2006, the day before the parties were due to appear before the Court for directions, the respondent served a copy of a construction certificate on the applicant’s solicitor. The matter was adjourned for a week to allow the applicant time to consider the construction certificate and the proceedings were then again stood over to 4 August to permit the respondents time to carry out the works in a fire safety schedule attached to the construction certificate, in order to bring the building into compliance with the Building Code of Australia and to satisfy the council’s requirements.

7 On 3 August 2006 the parties resolved the matter, and on 4 August 2006 the parties informed the Court that the only matter remaining outstanding was costs. I have been informed this morning that it is proposed by the applicant to formalise the resolution of the matter by discontinuing the substantive proceedings once the issue of costs has been resolved. The respondents were represented by a solicitor, but that solicitor filed a Notice of Ceasing to Act on 10 August 2006.

8 The council is entitled, in my view, to an order for costs pursuant to Pt 15 r 7 of the Land and Environment Court Rules 1996 on the basis that the respondents satisfied the applicant’s claim, of which the respondents were aware for more than six months before proceedings were commenced, only after the proceedings were commenced.

9 The council has appeared in court on some six occasions and has incurred costs in the drafting of the application, preparation for court and attendances in court, as well as in liaising with the respondents’ solicitor throughout the course of the proceedings in reaching a settlement. The evidence before me suggests that the costs that would be reasonably recoverable on a party and party basis are in the order of $7,250. However the council only presses for an order for costs in the sum of $5,000. I am satisfied on the evidence that an order for costs in that sum ought to be made against the respondents. The council seeks not to have to discontinue the proceedings until the time for compliance with the costs order has expired.

10 Accordingly, I make the following orders:

1. Order that the respondents pay the applicant’s costs of the proceedings in the sum of $5,000 on or before 22 September 2006.

2. Order that the applicant file a notice of discontinuance of proceedings on or before 26 September 2006.

3. Liberty to restore on 24 hours notice on 26 September 2006.