Hall & Hall v City of Burnside & Ors (No 5) - [2008] SASC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
HALL & HALL v CITY OF BURNSIDE & ORS (No 5)
[2008] SASC 82
Reasons for Decision of The Honourable Justice Bleby
27 March 2008
PROCEDURE - COSTS
Defendants sought costs of successful application to dismiss plaintiffs' application - whether indemnity costs should be granted from date of previous successful Full Court appeal refusing plaintiffs' application for extension of time - action could only be continued in nuisance after Full Court appeal - only third plaintiff had standing in action in nuisance - third plaintiff discontinued action against all defendants - remaining plaintiffs continued action and unsuccessfully sought permission to amend relief claimed - costs payable by plaintiffs - indemnity costs payable by remaining plaintiffs from date of discontinuance of third plaintiff.
Hall & Hall v City of Burnside & Ors (No 4) [2007] SASC 460, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"indemnity costs"

HALL & HALL v CITY OF BURNSIDE & ORS (No 5)
[2008] SASC 82
Civil
BLEBY J.
Introduction

By order dated 21 December 2007 I dismissed the plaintiffs’ action against the defendants for reasons which I then published.[1] I will not repeat what I said there save where necessary for the purpose of this decision. The second defendant, City Apartments Pty Ltd (“City Apartments”), applies for an order for the costs of the action, including an order that the plaintiffs pay the costs on an indemnity basis from 12 September 2006. That was the day on which the Full Court ordered that the plaintiffs’ application for an extension of time within which to commence the proceedings for judicial review be refused.
[1] Hall & Hall v City of Burnside & Ors (No 4) [2007] SASC 460.
The first defendant, City of Burnside, seeks an order for costs of the action. It does not seek an order for indemnity costs.
The third defendant, Katnich Dodd, has applied for an order for costs of the action. It was not represented on the hearing of the argument as to costs.
Mr Swan, Counsel for the plaintiffs, does not oppose an order for costs of the application to amend the statement of claim, an application which I refused at the time of dismissing the plaintiffs’ action. He does not oppose an order for costs of the application that the plaintiffs’ claim be dismissed. However, he opposes any order for costs prior to 15 December 2006. He argues that prior to that time there should be no order as to costs. He also opposes any order for indemnity costs.
The relevant history
Before considering these arguments, it is necessary to recite a little more of the history of the proceedings relevant to the question of costs.
The action was commenced on 31 January 2006. The relief claimed by the plaintiffs was in the nature of judicial review to quash a development approval under the Development Act 1993 issued by the City of Burnside, and to quash a certain Building Rules consent issued by Katnich Dodd on which the development approval was based. The prayer for relief included an incidental declaration of invalidity of the development approval and of the Building Rules consent. It also sought relief by way of injunction to restrain City Apartments from proceeding directly or indirectly with the development, the subject of the development approval.
At that time, Dr SJ Halcrow was a plaintiff together with Mr and Mrs Hall, the present plaintiffs. Although the point has never been argued, he must have had at least doubtful standing to seek the judicial review and the incidental declaratory relief. The basis of his interest appears to have been an action in nuisance for injunctive relief to prevent what was alleged to be possible damage to his property. That was because of the alleged instability of the development if it went ahead in accordance with the development approval. There were no pleadings ever filed in respect of Dr Halcrow’s claim. His claim was justified by an assertion in his own affidavit and on engineering advice obtained by the plaintiffs.
I made the order giving leave to serve proceedings in the within action conditional upon the plaintiffs applying to the Full Court, in action number 494 of 2005, to vary the order made in those other proceedings on 9 September 2005.[2] That was because that order appeared to stand in the way of any relief that Mr and Mrs Hall might claim in these proceedings.
[2] See Hall & Anor v City of Burnside and City Apartments Pty Ltd (2005) 92 SASR 579, [2005] SASC 343.
An application to that effect was filed but has never been proceeded with.
The plaintiffs later made an application for an extension of time in these proceedings. On 12 September 2006, the Full Court of this Court refused the plaintiffs’ application for an extension of time to bring judicial review proceedings.[3] That effectively barred any judicial review proceedings and proceedings for incidental declarations.
[3] Hall & Ors v City of Burnside & Ors (2006) 245 LSJS 440, [2006] SASC 283.
Following the decision of the Full Court to refuse an extension of time, no application to amend the plaintiffs’ prayer for relief was pressed until the application referred to below which I dismissed on 21 December 2007. With the application for extension of time refused, the action could only possibly have continued in nuisance for injunctive relief based on engineering evidence as to the stability of the proposed development. In respect of that part of the application, Mr and Mrs Hall would appear to have had no standing because, unlike Dr Halcrow, their property and safety was not endangered by the proposed development.
Mr Swan argues that a significant change to the proposed development arose in December 2006 when it first became apparent that there might be an engineering solution to what the plaintiffs claimed was the alleged instability of the proposed development. Before that, he argued, the development as proposed was unstable and dangerous.
Consequent upon that engineering advice, City Apartments, on 15 December 2006, obtained a further amendment to its Building Rules consent for a revised design of a retaining wall to be constructed at the toe of the embankment of the subject land.
On 28 June 2007 Dr Halcrow filed a notice of discontinuance of his action against the City of Burnside and City Apartments. On 3 August 2007, he filed a further notice of discontinuance against Katnich Dodd. It seems to me that, at least from those dates, the action in nuisance had no future against the respective defendants upon the filing of the notices of discontinuance.
On 3 August 2007, City Apartments applied to dismiss the plaintiffs’ action. That was followed by similar applications on the part of the City of Burnside on 21 September 2007 and by Katnich Dodd on 8 October 2007. It was pursuant to those applications that I dismissed the plaintiffs’ action on 21 December 2007. The present applications for costs are a consequence of that decision.
On 21 September 2007, the plaintiffs sought leave to amend their inter‑partes summons in the manner described in my earlier reasons.[4] I described the effect of those amendments, if granted, as follows:[5]
The effect of the amendments, if granted, is to maintain the claims for relief based on the alleged invalidity of both the original development approval and the development approval as now amended, and to seek removal of the embankment and reinstatement of the land on the ground that the embankment is not constructed in conformity with the development approval, if valid, and on the further ground that the embankment constitutes an actionable nuisance.
[4] Hall & Hall v City of Burnside & Ors (No 4) [2007] SASC 460, [24]-[26].
[5] Ibid [29].
I dismissed that application on the ground that none of the amended prayers for relief had any prospect of success.
Costs prior to 15 December 2006
I turn first to consider Mr Swan’s argument that there should be no order as to costs prior to 15 December 2006, when City Apartments obtained a further amended Building Rules consent. He argues that to that time, it could not be said that the plaintiffs’ claim was without merit or without real prospect of success, and that the claim in nuisance would, in all probability, have been successful. He submitted that it could never have been said that the plaintiffs’ position was unarguable, and that to that time, the plaintiffs were dealing with a moving target.
I cannot accede to that argument. The plaintiffs’ claim for declaratory relief and judicial review failed with the decision of the Full Court to refuse the extension of time. I am unable to form any view as to the likely success or otherwise of the plaintiffs’ then claim in nuisance. It would be inappropriate to do so. The claim in nuisance would appear to be all that was left of the plaintiffs’ claim after the Full Court’s decision to refuse the extension of time. It continued to be pressed by all three plaintiffs. However, it would appear that Dr Halcrow was the only person who may have had standing to press the claim. I note that the application by Mr and Mrs Hall, in September 2007, to amend the prayer for relief insofar as it related to a claim in nuisance, was not pressed by Mr and Mrs Hall.
Whatever may have been the merit of the action in nuisance, the defendants effectively succeeded in the claim when Dr Halcrow discontinued his action. There is no reason not to order costs against the remaining plaintiffs insofar as the action was brought in nuisance. Mr and Mrs Hall continued to be parties to that cause of action.
I have not been informed as to the basis of discontinuance of the action by Dr Halcrow or of the reason for his doing so. The effect, however, was to dispose of any action in nuisance, at least from 8 October 2007, the date of the last notice of discontinuance.
Thereafter, Mr and Mrs Hall were endeavouring to revive their action based on the alleged invalidity of the development approval and of the Building Rules consent, the subject of the original judicial review proceedings. On 21 December 2007, I ruled that they could not do so. I considered that any claim for equitable relief seeking the same remedy as judicial review would constitute an abuse of the process of the court and could not be permitted to continue.
It follows that, subject to any particular orders as to costs that may have been made in the course of the proceedings, and subject to any costs of the defendants which have been paid or may be payable by Dr Halcrow upon his discontinuing the action, the plaintiffs should pay the defendants’ costs of the action.
The claim for indemnity costs
I turn to consider the claim by City Apartments for indemnity costs from 12 September 2006.
With the refusal of the Full Court to extend time for the plaintiffs to commence their proceedings for judicial review, the plaintiffs had no prospect of succeeding in that or related claims calling in question the validity of the development approval and the Building Rules consent. However, there remained, until the discontinuance by Dr Halcrow, the action in nuisance, whether or not Mr and Mrs Hall had any prospect of succeeding in that claim.
As I have mentioned, the action in nuisance effectively came to an end, at least against City Apartments, with the notice of discontinuance filed by Dr Halcrow on 3 August 2007. To that time, I can see no reason to accede to the claim of City Apartments for indemnity costs. The action in nuisance was proceeding effectively in the name of all three plaintiffs. I am unable to say that it had no prospect of success before Dr Halcrow’s notice of discontinuance was filed.
However, from the date of his discontinuance, Mr and Mrs Hall had no prospect in succeeding in what was left of their action. In my decision on 21 December 2007, I held that their attempt, by amendment, to persist in their challenge to the validity of the development approval and the Building Rules consent would constitute an abuse of the process of the Court. Accordingly, I consider that City Apartments is entitled to an order for costs on an indemnity basis from 3 August 2007.
There will be orders accordingly.