Jarvie v Hawkesbury City Council

[2009] NSWLEC 220

Land and Environment Court

of New South Wales

CITATION:	Jarvie v Hawkesbury City Council [2009] NSWLEC 220
PARTIES:	APPLICANT: Russell Jarvie RESPONDENT: Hawkesbury City Council
FILE NUMBER(S):	10109 of 2007
CORAM:	Biscoe J
KEY ISSUES:	PRACTICE AND PROCEDURE :- stay of former bankrupt's application to reinstate his proceedings until he has paid other party's costs of other proceedings.
LEGISLATION CITED:	Civil Procedure Act 2005, s 67 Uniform Civil Procedure Rules 2005, r 12.4
CASES CITED:	Chalik v Wales [2006] NSWSC 129
TEXTS CITED:	Ritchie’s Uniform Civil Procedure NSW, 12.4.5
DATES OF HEARING:	9 December 2009
EX TEMPORE JUDGMENT DATE:	9 December 2009
LEGAL REPRESENTATIVES:	APPLICANT: Mr R Jarvie, in person SOLICITORS n/a RESPONDENT: Ms L Finn, solicitor SOLICITORS HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

9 December 2009

10109 of 2007

JARVIE v HAWKESBURY CITY COUNCIL

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a notice of motion by the respondent council for an order that the leave application by the applicant, Mr Jarvie, for the reinstatement of proceedings 10109 of 2007 (2007 proceedings) be stayed until Mr Jarvie has paid the council’s costs in proceedings 11350 of 2004 (2004 proceedings).

2004 PROCEEDINGS

2 In 2003 the applicant lodged a development application for the use of property at 1575 Bells Line of Road, Kurrajong Heights for the purpose of a commercial bore. In November 2004 the applicant filed the 2004 proceedings, which were a merits appeal to this Court against the council’s deemed refusal of the 2003 development application. In December 2004 the council determined to refuse consent to that development application. In the 2004 proceedings a person was appointed as a court appointed hydrology expert. On 28 March 2006 the applicant discontinued the 2004 proceedings.

3 On 24 August 2006, Mr Jarvie was declared bankrupt.

4 On 4 December 2006 Talbot J ordered Mr Jarvie to pay certain of the council’s costs of the 2004 proceedings. His Honour also ordered that the council notify Mr Jarvie’s trustee in bankruptcy that the Court had made those orders, including notification that application may be made to the Court for variation or dismissal of those orders by a specified date. The council complied with that order.

5 In January 2007 the applicant filed a notice of motion seeking to set aside the costs orders of Talbot J.

6 On 30 May 2007 the Court ordered that the 2004 proceedings be stayed until the trustee in bankruptcy made an application to the Court to proceed with the matter or Mr Jarvie made an application to the court following discharge from bankruptcy.

7 The council was unsuccessful in serving its application for assessment of costs on Mr Jarvie. Enquiries at an address at HWY Rentals, 72 Bells Line of Road, North Richmond indicated that he was the owner but that he spent a lot of time in Queensland and was not there and it was not known when he was expected to return. The attendance of the service agent at 1575 Bells Line of Road, Kurrajong Heights indicated that only a caravan was located there. Enquiries nearby indicated that Mr Jarvie owned the property and had a tenant residing in the caravan and that he did not reside next door. Correspondence from the council to that address has been returned indicating that he was not known at that address. Before me however, Mr Jarvie has said that 1575 Bells Line of Road is his residence, that there are a number of caravans there, and that he resides in one at the back.

8 On 3 November 2009, the Registrar ordered Mr Jarvie to provide to the Court and the council’s solicitors an address for service, a contact telephone number and an email or facsimile number. He did not comply with that order.

2005 PROCEEDINGs

9 Meanwhile, in July 2005, the council commenced class 4 proceedings seeking a declaration that Mr Jarvie had undertaken work in the nature of drilling bores without consent, an order restraining him from doing so, and an order that he seal the bores currently on the property until the council had consented (2005 proceedings). An injunction was granted but later discharged subject to an undertaking by Mr Jarvie.

10 On 7 July 2006 the Court made consent orders in the council’s 2005 proceedings to the effect that Mr Jarvie would not carry out work in relation to drilling bore holes without first obtaining a development consent, and released MrJarvie from his undertaking.

2007 PROCEEDINGS

11 In March 2006, Mr Jarvie filed a further development application with the council. In the accompanying documents, the development application was defined to include the construction and operation of a groundwater bore for commercial purposes. This application therefore appears to be the same or substantially the same as that which was the subject of the 2004 proceedings.

12 In February 2007 Mr Jarvie commenced the 2007 proceedings by appealing against the council’s deemed refusal of that development application.

13 On 22 September 2009 Mr Jarvie was discharged from bankruptcy. Information received from Mr Jarvie’s trustee in bankruptcy indicates that his bankruptcy is not annulled, that assets vested in the bankrupt estate do not revest in him, and that the trustee in bankruptcy did not intend to become a party in the proceedings.

14 On 16 October 2009 Mr Jarvie filed a notice of motion in the 2007 proceedings seeking (inter alia) an order that leave be granted to reinstate the 2007 proceedings and an order that the Court appointed expert (in the discontinued 2004 proceedings) be dismissed. Apparently Mr Jarvie anticipated that this report would be used in the 2007 proceedings.

15 On 13 November 2009 the council filed a notice of motion, which is now before me, seeking a stay of Mr Jarvie’s application for leave to reinstate the 2007 proceedings until he has paid the council’s costs in the 2004 proceedings.

STAY

16 Section 67 of the Civil Procedure Act 2005 provides that: “Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.”

17 The council seeks the stay order under r 12.4 of the Uniform Civil Procedure Rules 2005, which provides:

“ 12.4 Stay of further proceedings to secure costs of discontinued proceedings
If:
(a) as a consequence of the discontinuance of proceedings, a plaintiff is liable to pay the costs of another party in relation to those proceedings, and

(b) before payment of the costs, the plaintiff commences further proceedings against that other party on the same or substantially the same cause of action as that on which the former proceedings were commenced,
the court may stay the further proceedings until those costs are paid and may make such consequential order as it thinks fit.”

18 As a general rule, the Court will grant a stay where the circumstances are within this rule: see the authorities cited in Ritchie’s Uniform Civil Procedure NSW at [12.4.5].

19 The costs awarded against Mr Jarvie were awarded after the intervention of his bankruptcy. Therefore they did not represent a provable debt in his bankruptcy but made him personally liable: see Chalik v Wales [2006] NSWSC 129 at [7] - [9].

20 In my opinion, the circumstances of the present case are within UCPR r 12.4. As a consequence of Mr Jarvie’s discontinuance of his 2004 proceedings, he was liable to pay the council’s costs of those proceedings. Before payment of those costs, he commenced the 2007 proceedings on the same or substantially the same cause of action as that on which the 2004 proceedings were commenced.

21 I turn to the issue of discretion. The matters raised by Mr Jarvie in argument seem to be largely concerned with a grievance concerning the appointment of the court appointed expert in the 2004 proceedings. As I have said, he appears to have assumed that that expert’s report would be used in the 2007 proceedings. However, no order to that effect has been made and the council disavows any intention along those lines. I do not think that this consideration bear significantly on the exercise of discretion under r 12.4. I consider it appropriate to exercise the discretion in the council’s favour.

22 The orders of the Court are as follows:

1. the leave sought by the applicant, Mr Jarvie, in his notice of motion of 16 October 2009 for the reinstatement of proceedings 10109 of 2007 be stayed until such time as he has paid the respondent council’s costs in proceedings 11350 of 2004;
2. the council’s notice of motion of 13 November 2009 is otherwise dismissed.