Council of the City of Sydney v Le (No 2)

[2010] NSWLEC 218

Land and Environment Court

of New South Wales

CITATION:	Council of the City of Sydney v Le (No 2) [2010] NSWLEC 218
PARTIES:	APPLICANT Council of the City of Sydney RESPONDENT Tien Luy Le
FILE NUMBER(S):	40951 of 2009
CORAM:	Pain J
KEY ISSUES:	COSTS :- whether court should exercise its discretion to award local council's costs of removal of waste and legal costs of enforcing a clean up order
LEGISLATION CITED:	Local Government Act 1993 s 678(6)
CASES CITED:	Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333 Council of City of Sydney v Sulligoi [2007] NSWLEC 778
DATES OF HEARING:	6 August 2010
EX TEMPORE JUDGMENT DATE:	6 August 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr A Hawkes (solicitor) SOLICITOR Council of the City of Sydney RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

6 August 2010

40951 of 2009 Council of the City of Sydney v Le (No 2)

EX TEMPORE JUDGMENT

1 Her Honour: I have before me a Notice of Motion where the Council is seeking orders that pursuant to orders made by me on 25 March 2010 the Respondent is to pay the Council’s costs and expenses of carrying out works in the sum of $1,938 (prayer 1). That order is sought pursuant to s 678(6) of the Local Government Act (the LG Act).

2 The second order sought is that pursuant to order 6 of the orders made by me on 25 March 2010, the Respondent should pay the Council’s legal costs for these proceedings in the sum of $5,376 together with the further costs of this Notice of Motion and any other order the Court sees fit.

3 In Council of the City of Sydney v Le [2010] NSWLEC 78 delivered on 25 March 2010, I made orders ex parte, that is without Mr Le present, which enabled the Council, after certain notices were given to Mr Le, to remove waste material as specified from premises at 5 Union Street Pyrmont. As part of those orders, as referred to in the Notice of Motion before me, I made order 3 that the Respondent is to pay the Council’s associated costs and expenses of carrying out these orders pursuant to s 678(6) of the LG Act and also in prayer 6, the Respondent is to pay the Council’s costs of the proceedings as agreed or assessed.

4 In support of that motion, I have before me an affidavit of Mr Hawkes, solicitor, sworn 4 June 2010. That affidavit sets out the lengthy correspondence between Mr Le and himself leading up to the proceedings today and relates in part to the enforcement of the order by the Council.

5 It also refers to the fact that Mr Le mistakenly understood that the original hearing date of 25 March 2010 was 29 March 2010 because a letter sent by Mr Hawkes to him prior to the hearing date referred to 29 March 2010 as the hearing date. When Mr Hawkes wrote to Mr Le and advised him of 29 March 2010 he also included directions from the Court advising that the hearing date was 25 March 2010.

6 I note that in addition the Court wrote to Mr Le to advise him of the hearing date of 25 March 2010. Consequently Mr Le was provided with the correct date of the hearing by the Court. I further note that Mr Le’s submissions from the bar table that he also discussed the hearing date of 29 March 2010 by telephone with Mr Hawkes is strongly denied by Mr Hawkes. There is no sworn evidence from Mr Le to support that submission from the bar table.

7 Also filed in support of the motion is an affidavit of Ms Bajwa dated 4 June 2010. She is the Environmental Health Officer from the Council of the City of Sydney and has been involved with the enforcement of the Court orders made on 25 March 2010. She refers to the terms of the orders, the items that have been removed from the property and the process that was undertaken to achieve compliance with those orders. She also attaches to her affidavit a number of photographs of the material which was removed.

8 Ms Bajwa also attaches to the affidavit a quotation received from the relevant section within the City of Sydney that undertakes this work. The original quotation was for $3,456. I note that the actual cost to the City of Sydney was $1,938 which is the amount sought in prayer 1 in the Council’s Notice of Motion. As Mr Hawkes pointed out, that means the original quotation was reduced as the work cost less than originally thought.

9 Additional affidavits include the affidavit of Mr Stephen Twigg sworn 24 June 2010 in which he attests to the service of documents at 5 Union Street Pyrmont in relation to the hearing of this motion for costs today. A further affidavit of Mr Twigg sworn 6 April 2010 attests to the service on Mr Le of the orders made by me in this Court on 25 March 2010. The purpose of that evidence is to demonstrate that Mr Le was informed of the Court’s orders and that is also clear from the correspondence attached to the affidavit of Mr Hawkes.

10 I should also note in terms of evidence given, that in light of issues raised from the bar table by Mr Le today where he said that certain plywood sheets and steel beams were removed by the Council which he did not consider came within the terms of the orders, Ms Bajwa gave further oral evidence as to what she believed was covered by the orders by reference to photographs in both her affidavits read today and her earlier affidavit sworn 18 March 2010. In her professional opinion all of the items removed by the Council fell within the terms of the Court’s orders of 25 March 2010.

11 Also in terms of further evidence I note that Mr Le was given leave to file in Court today an affidavit sworn today by him in which he refers to a number of discussions had with Mr Hawkes and also explains in part why he was not able to come to Court and seek to have the order of 25 March 2010 overturned, citing illness of both himself and his mother. He has also referred from the bar table to other difficult personal circumstances which he says made it difficult to come to Court to have the order set aside. I have to say however it is clear he was in no doubt about the terms of the order. There is extensive correspondence attached to Mr Hawkes’ affidavit which makes clear that Mr Le was aware he could seek to have the orders set aside.

Conclusion

12 In terms of exercising my discretion as to whether I should make the orders sought by the Council, it appears to me that the order has been properly enforced by the Council and it has therefore properly incurred the removal costs which it now seeks to claim in prayer 1 in relation to the removal of the waste items on Mr Le’s property. Mr Le has submitted that those costs are excessive. It seems that in fact the original quotation was able to be reduced so that the actual costs of the Council are less. I do not consider these costs are excessive in the circumstances set out in both Ms Bajwa and Mr Hawkes’ affidavits.

13 As submitted by Mr Hawkes in par 17 of his written submissions the Court has power to make the orders sought. Similar orders have been made by me and other judges in a number of other cases as set out in Mr Hawkes’ submissions. In the circumstances of this matter I consider I should make the first order set out in the Council’s Notice of Motion.

14 In relation to legal costs, Mr Hawkes submits that such costs can be awarded. There is provision as I understand his submission for the awarding of costs in relation to the Council’s in-house solicitors.

15 In terms of my reasoning in relation to prayer 2 of the Notice of Motion seeking legal costs, I agree with the submissions of Mr Hawkes that it is open to the Court to award the legal costs for in-house counsel and solicitors relying on Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333. I have awarded legal costs in other similar cases particularly I recall in Council of City of Sydney v Sulligoi [2007] NSWLEC 778.

16 In terms of the amount of legal work involved due to the extensive correspondence and dealings with Mr Le necessary in this matter it seems that the costs sought are fair and reasonable. It is preferable that I award an amount in a particular sum to avoid the need for taxation which is itself lengthy and expensive.

17 The amount of costs reflects the complexities of the issues raised in the pleadings, the numerous interlocutory processes, the need for a final hearing and subsequently the enforcement of the orders through the necessary involvement of Council’s solicitors. I consider I should also make the orders sought in prayer 2.

18 Mr Le has asked that the enforcement of any costs order be stayed for two years because of difficulty in getting rent paid for the building he owns and has tenanted and because he needs to fix the roof of the building.

19 I am going to make the order unaltered in prayer 1 and I will vary the order in prayer 2 in relation to legal costs to the effect that it cannot be enforced for ten months. Otherwise I make the orders as sought in the motion.

Orders

20 The Court makes the following orders:

1. That pursuant to order No 3 of the orders made by Pain J on 25 March 2010, the Respondent is to pay the Council’s costs and expenses of carrying out the works in the sum of $1938 pursuant to s 678(6) of the Local Government Act 1993.

2. That pursuant to order No 6 of the orders made Pain J on 25 March 2010 the Respondent is pay the Council’s legal costs of the proceedings in the sum of $5376 together with the further costs of this Notice of Motion not to be enforced for ten months from the date of this order.