Holroyd City Council v Peter Kubacki & Anor; Peter Kubacki & Anor v Holroyd City Council

[2007] NSWLEC 804

Land and Environment Court

of New South Wales

CITATION:

Holroyd City Council v Peter Kubacki & Anor; Peter Kubacki & Anor v Holroyd City Council [2007] NSWLEC 804

PARTIES:

41251 of 2006
APPLICANT
Holroyd City Council
RESPONDENTS
Peter Kubacki (First Respondent)
Combined Warehousing Services Pty Ltd (Second Respondent)

10458 of 2007
APPLICANTS
Peter Kubacki (First Applicant)
Combined Warehousing Services Pty Ltd (Second Applicant)
RESPONDENT
Holroyd City Council

FILE NUMBER(S):

41251 of 2006; 10458 of 2007

CORAM:

Sheahan J

KEY ISSUES:

Costs :- whether the awarding of costs is fair and reasonable

LEGISLATION CITED:

Aldi Foods Pty Ltd v Holroyd City Council (2005) NSWLEC 338
Grant v Kiama Municipal Council [2006] NSWLEC 70
Port Stephens Council v Jeffrey Sansom [2007] NSWCA 299
Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300

DATES OF HEARING:

7 December 2007

EX TEMPORE JUDGMENT DATE:

7 December 2007

LEGAL REPRESENTATIVES:

41251 of 2006
APPLICANT
Mr G McKee, Solicitor of
McKees

RESPONDENT
Mr S Williamson
SOLICITORS
Braye Cragg Solicitors

10458 of 2007
APPLICANT
Mr S Williamson
SOLICITORS
Braye Cragg Solicitors

RESPONDENT
Mr G McKee, Solicitor of
McKees

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

7 December 2007

10458 of 2007 Peter Kubacki & Anor v Holroyd City Council
41251 of 2006 Holroyd City Council v Peter Kubacki & Anor

EXTEMPORE JUDGMENT

1 His Honour: There are, as everyone knows, two sets of proceedings, one in Class 4 and the other in Class 1 of the Court’s jurisdiction. The Council today seeks orders for costs in its favour in both of these proceedings.

2 The parties have agreed that there would be a costs order in favour of the Council in the Class 4 proceedings, subject to some issues remaining between them as to the quantum of the costs to be paid.

3 I acknowledge also what has just been said, that there could be some overlap in items between the two sets of proceedings, but in the Class 1 matter I have today heard the Council’s Notice of Motion, and I have been assisted by extensive affidavit material and comprehensive submissions on both sides.

4 As the Court of Appeal has recently said (in Port Stephens Council v Jeffrey Sansom [2007] NSWCA 299 and in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300), the principles laid down by the learned Chief Judge, Preston J, in Grant v Kiama Municipal Council [2006] NSWLEC 70 (“Grant”) are those to be applied, but not on the basis of any presumption of an order one way or the other.

5 The relevant principles are set out in par 15 of His Honour’s judgment in Grant and need not be repeated in full. Mr McKee relies principally on pars (c), (d)(i), and (f). His Honour expounds those and the other grounds with an important preface and I will read the beginning of par 15:

“An examination of the cases reveals a variety of circumstances where courts have considered that it would be fair and reasonable to make an order for costs. These include the following circumstances, although these do not exhaust the circumstances”.

6 Just for the record, par (c ) says:

“where a party fails to provide or delays unreasonably in providing information or documents required as part of the application for approval, including statements required by the relevant statute (such as an environmental impact statement or species impact statement required by s 78A(8) of the EPA Act, or statement of environmental effects required by para 2(1)(c) in Part 1 of Schedule 1 and cl 50(1)(a) of the Environmental Planning and Assessment Regulation 2000) or statements or information required by an environmental planning instrument, or information or documents centrally relevant to the development the subject of the application and necessary to enable a consent authority to gain a proper understanding of and to give proper consideration to the application”.

7 Paragraph (d)(i) says:

“where a party has acted unreasonably in the conduct of the proceedings such as:
(i) delaying unreasonably in taking action or making proper concessions or agreeing to proper amendments to originating process, pleadings, evidence or interlocutory directions and orders”.

8 Paragraph (f) says:

“where the proceedings or the defence of the proceedings has been commenced or continued in circumstances where the applicant or respondent respectively, properly advised, should have known that it had no chance or very poor prospects of success”.

9 On the facts of any particular matter, these things are never free of contest.

10 Mr Williamson’s submissions rely not only on Grant, but he contests the factual bases on which Mr McKee has made his case.

11 On considering all of the material, I have concluded that the Class 1 proceedings were brought, not simply to obtain the Court’s approval to the use of the subject premises for starch storage, but to stave off the possible success of the Council’s Class 4 proceedings in obtaining orders that the unapproved use should cease.

12 The occupier’s development application was refused in November 2006, but the use did not cease. The Class 4 was commenced on 20 December 2006 and effectively held in abeyance while the occupier made a s.82A application. That application failed, clearly because, on the evidence, the occupier did not do as he was clearly advised, namely obtain appropriate and up to date reports, and make consequent proposals to the Council to deal with the identified problems with the relevant use of the premises, and with the relevant development application, especially on matters of the Building Code of Australia and acoustics. These were serious shortcomings in the project.

13 There is no doubt the development application was “capable of approval”, and its shortcomings capable of solution, but very little, if anything, was done in the relevant direction between the refusal of the development application and the discontinuance of the Class 1 proceedings.

14 That being so, I do not need to go into all the details evidenced in the two affidavits before me.

15 As the authorities make plain, a costs order will be made in Class 1 proceedings only if it is fair, reasonable, just and equitable. In this regard, we should see the decision in Grant, but also the comments of Talbot J in Aldi Foods Pty Ltd v Holroyd City Council [2005] NSWLEC 338.

16 I am satisfied that that test is met in all the circumstances of this case and I order in Matter 10458 of 2007 that the Applicants pay the costs of the Respondent Council, as agreed or assessed.

17 To conclude the matter of the Class 4 proceedings, I order, by consent, that the respondents to those proceedings pay the applicant’s costs, as agreed or assessed.

18 As requested by Mr McKee, I grant the parties liberty to apply on 7 days notice.

19 In the circumstances, the Council has been entirely successful in today’s proceedings and is entitled to have its costs of the notice of motion, as agreed or assessed.