Drummoyne Municipal Council v Burton

[1999] NSWLEC 183

Land and Environment Court

of New South Wales

CITATION:	Drummoyne Municipal Council v Burton & Ors [1999] NSWLEC 183
PARTIES	APPLICANT Drummoyne Municipal Council
FIRST RESPONDENT Robert Burton SECOND RESPONDENT Francesco Biviano THIRD RESPONDENT Maria Rosa Biviano
NUMBER:	40118 of 1997
CORAM:	Sheahan J
KEY ISSUES:	Costs :- in class 4 proceedings
LEGISLATION CITED:
DATES OF HEARING:	07/12/1999
EX TEMPORE JUDGMENT DATE:	07/12/1999
LEGAL REPRESENTATIVES:	APPLICANT SOLICITORS Abbott Tout FIRST RESPONDENT N/A SECOND AND THIRD RESPONDENTS SOLICITORS Egisto Solicitors

JUDGMENT:

IN THE LAND AND Matter No: 40118 of 1997

ENVIRONMENT COURT Coram: Sheahan J

OF NEW SOUTH WALES 12 July 1999

DRUMMOYNE MUNICIPAL COUNCIL

Applicant

v

ROBERT BURTON

First Respondent

FRANCESCO BIVIANO

Second Respondent

MARIA ROSA BIVIANO

Third Respondent

JUDGMENT

1. The second and third respondents by notice of motion filed on 27 April 1999 seek to be released from the burden of an order for costs made by the Registrar on 18 December 1997 that " the respondents " should pay the applicant's costs of the proceedings.

2. These are class 4 proceedings concerning the alleged use by the first respondent of premises owned by the second and third respondents as a brothel. They were substantially resolved by consent orders made on 28 November 1997. On that date, the parties were ordered to file and serve affidavits on the question of costs. Otherwise the consent orders effectively repeated the prayers for relief in the class 4 application, save that one order was suspended for a period of some three months.

3. The class 4 application had been filed on 21 May 1997. On 25 June 1997 the three respondents appeared by Egisto, solicitors. On 19 August 1997 a Mr Russo filed an appearance for the first respondent.

4. Mr Biviano, the second respondent, appears to have consented as owner of the premises to relevant development applications on 28 November 1996 and 8 May 1997. Both Mr & Mrs Biviano appear to have signed a relevant letter of consent on 9 December 1996. Mrs Biviano similarly signed a relevant letter of consent on 4 June 1997.

5. However, the official Court record shows, on many occasions, Mr Russo, or his representative, as having appeared before the Registrar on behalf of all three respondents. Only on 2 September 1997 and 11 November 1997 is he shown as appearing only for the first respondent, and on the latter date he was ordered to notify the second and third respondents of the outcome. Relevantly, on 28 November 1997 and 18 December 1997 he is shown as appearing for all three.

6. Today Mr Kiernan of Egisto solicitors moved the Court on behalf of the second and third respondents and there was no appearance on behalf of the first respondent.

7. No challenge has been levelled against the making of the costs order. What is submitted is that the Court should now be satisfied that the second and third respondents are entitled to the benefit of the provisions of Part 15 Rule 9 which relevantly provides as follows:

The Court may on terms set aside or vary an order in any of the following cases: (a) if the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default, and whether or not the absent party had notice of the motion for the order.

8. I need not repeat the other sub-paragraphs of Rule 9.

9. There is no evidence before the Court of any impropriety on the part of those acting for the applicant, or on the part of those exercising the powers of the Court. It may well be that Mr Russo was not entitled to announce his appearance on behalf of the second and third respondents but there is no evidence of that before me.

10. There is attached to various affidavits a copy of a letter from Russo & Co to the solicitors for the applicant, dated 27 November 1997, which refers to " our client, Mr R Burton ", but goes on to report that the second and third respondents have given Burton or Russo to understand that they would agree to the substantive orders but would not consent to any orders for costs.

11. Mr Graham has relied upon two cases of the High Court which spell out that the public interest dictates finality in orders made and judgments given by our courts. He referred particularly to Wentworth v Woollahra Municipal Council and Ors (1981) 2 149 CLR 672 and I draw particular attention to the passage at about point 2 on page 684; and to Auto Desk Incorporated and Another v Dyason and Ors (1992-3) 176 CLR 300 and I draw attention especially to the passage at the top of page 303.

12. It is not the Court's function at this late stage in the day to second-guess with the benefit of hindsight and experience, but in the absence of any real evidence, what must have occurred behind the scenes such that the second and third respondents came to feel so seriously aggrieved as to what has befallen them as a consequence of this litigation.

13. As was discussed during argument, what is common in proceedings such as these where a class 4 matter is running in tandem with a development application, or a class 1 appeal arising therefrom, would be for the owner of the premises to file a " submitting appearance save as to costs ".

14. As that technicality was not attended to after the apparent change in Mr Burton's representation, it would appear that Mr Burton's solicitor may not have kept Mr and Mrs Biviano or their solicitor as well informed as he might as to the passage of the costs element of the proceedings.

15. However, one needs much more than such surmise to vacate an order made more than eighteen months ago, particularly given the uncontested evidence that Mr Russo announced his appearance for all three respondents on 18 December 1997 when the costs order was made.

16. There is some evidence as I have noted of some discussion at a relevant stage among the respondents about exposure to costs, but there is before me no evidence to substantiate any grounds for setting aside the order and making a different one.

17. Mr Graham further submits that the Court should have regard to the delay in making this application, given that Mr and Mrs Biviano were notified no later than 8 May 1998 that they were expected to pay the applicant's costs of the proceedings, and that they appear to have taken no action to seek relief until enforcement action began.

18. Costs generally follow the event in class 4 proceedings, particularly where the Court is satisfied when cases do settle, that, as Bignold J said in Jan Yee v Woollahra (40232 of 1995, judgment delivered on 26 March 1997), the proceedings appear to have been " justifiably commenced, justifiably continued, justifiably settled and in all probability would have succeeded ".

19. In all the circumstances, I have concluded that the notice of motion should be dismissed and that the second and third respondents should be ordered also to pay the applicant's costs in respect of it.