Koutsovasiles v Randwick City Council - [2002] NSWSC 588

No judgment structure available for this case.

CITATION: Koutsovasiles & Ors v Randwick City Council [2002] NSWSC 588

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3352/99

HEARING DATE(S): 12 April 2002; 27-30 May 2002 inclusive

JUDGMENT DATE: 5 July 2002

PARTIES :

Jim Koutsovasiles, Matoula Koutsovasiles and Chris Jim Koutsovasiles v Randwick City Council

JUDGMENT OF: Davies AJ at 1

COUNSEL : M. Galvin (Plaintiff)
A.J. Thompson (Defendant)

SOLICITORS: Creagh & Creagh (Plaintiff)
Bowen & Gerathy (Defendant)

CATCHWORDS: Local Government - whether a Council entered into contract with property owners - whether a proposed arrangement was the proper subject matter of contract - whether an order of specific performance should be refused on public interest grounds

DECISION: Application dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

DAVIES AJ

Friday 5 July 2002`

3352/99 JIM KOUTSOVASILES, MATOULA KOUTSOVASILES and CHRIS JIM KOUTSOVASILES v RANDWICK CITY COUNCIL

JUDGMENT

1 HIS HONOUR: The plaintiffs are Jim Koutsovasiles (“Mr Vasales”), his wife Matoula and his son Chris. Mr Vasales and his wife are the owners of residential premises at 90 Barker Street, Kingsford (“No 90”). Mr Vasales and Chris are the owners of the adjoining property at 88 Barker Street, Kingsford (“No 88”). Running between the two properties is a lane named Kennedy lane which, at the commencement of the period with which we are concerned, was unmade. The two properties have been occupied by members of the family. Mr Vasales, his wife and Chris currently reside at No 88.

2 The plaintiffs seek a declaration that, on or about 22 June 1995, they and the defendant, the Randwick City Council (“the Council”), entered into a contract which related to Kennedy lane and which was set out in a letter dated 22 June 1995. The plaintiffs seek an order for specific performance of that alleged contract.

3 In the proceedings, Mr M. Galvin of counsel appeared for the plaintiffs and Mr A.J.Thompson of counsel appeared for the Council.

4 Evidence was given to the Court of events which occurred over many years. However, I do not propose to do more than give a general picture of the pattern of events. The principal witness for the plaintiffs was Mr Vasales. He conducted or was responsible for all negotiations with the Council. In 1998, Kennedy lane was six metres in width for most of its length from Barker Street to near the southern end of the two properties where it widened into a roadway. In 1998, Mr and Mrs Vasales sought the closure of a three metre strip on the western boundary of 90 Barker Street, with a view to incorporating that strip into their property. That closure was approved by the Council subject to the provision of a concrete footway, 1.2 metres wide, along the lane at the cost of the Vasales and the provision of a three metre wide splay at the frontage with Barker Street. Mr Vasales at first objected to those conditions. However, the cost of the path was fixed by the Council at $1,930, if paid within 3 months. Mr Vasales forwarded his cheque for that amount on 4 July 1990, outside that period. The closure then went ahead.

5 On 7 July 1990, Mr and Mrs Vasales sought the closure of an additional 600 mm on the west side of the strip which had been incorporated into No 90. On 4 December 1990, the Council approved that closure and the closure was given effect. The result was that Kennedy lane between the two houses was reduced to a strip 2.4 metres wide.

6 On 16 January 1992, Mr Vasales was informed by the Council that the Council would not construct the concrete footpath until Mr and Mrs Vasales had erected a new boundary fence and that the $1,930 would be retained. As this had been received after the three months period specified by the Council, the money was to be held by the Council and taken into account after the works had been completed.

7 At some stage, Mr Vasales made application to acquire a one foot strip of the lane along the eastern side of No 88 and, in August 1993, he wrote to the Council to say that he wished to exchange a two foot strip on the western side of 90 Barker Street for a three foot strip on the eastern side of 88 Barker Street. Mr Vasales contended that there was insufficient room between the house on No 88 and its eastern boundary, that there were privacy problems because people walking along the laneway could see into the backyard of 88 Barker Street and that additional land was required to allow for adequate footings for the construction of a fence along the eastern boundary of the property. Mr Vasales sought, alternatively, the closure of the full length and width of the lane.

8 On 17 December 1993, the Minister for Land and Water Conservation wrote to Mr Vasales to say that the Council had indicated that it would support an application by him to purchase 600 mm adjacent to No 88 Barker Street provided that he re-established as a laneway the 600 mm purchased from the Crown in 1991.

9 On 29 December 1993, Mr Vasales wrote to the Council stating that he had paid $1,930 for the construction of a footpath along Kennedy lane but did not wish to go ahead with this proposal. He requested a refund.

10 At some stage, legal proceedings, not the present proceedings, were instituted by the Vasales against the Council. At some later stage, those proceedings were dismissed. Mr Vasales was vociferous in his complaints to the Council and to the Minister for Land and Water Conservation.

11 During the middle of 1994, Stewart Levitt & Co, solicitors for Mr and Mrs Vasales, lodged with the Council and later with the Department of Conservation and Land Management, an application for the closure of the remainder of Kennedy lane between the two properties. That proposal met opposition from the Council. The application was later refused by the Council on the ground that community use of the laneway was evident.

12 On 11 November 1994, the lane was transferred to the Council in accordance with s151 of the Roads Act 1993, thus constituting it the Road Authority.

13 On 8 November 1994, Pike Pike & Fenwick, solicitors for Mr Vasales, wrote to the Ombudsman complaining about the conduct of the Council and its officers.

14 On 24 February 1995, a workman arrived at Kennedy lane to commence the construction of the footpath along Kennedy lane. Messrs Pike, Pike & Fenwick threatened legal action. The work was discontinued.

15 On 13 March 1995, a Mr Max Brand, a consulting engineer engaged by Mr Vasales, reported that he had inspected the Council’s plan for the concrete footway and had found three problems with them, including the fact that the path level did not alleviate the lack of privacy to residents of No 88, as the pathway level was such that passers-by could see over the fence. Mr Brand prepared his own sketch of a pathway which provided for a reduction in the level and a set of stairs upwards near the southern end of the proposed footpath.

16 On 29 May 1995, Pike Pike & Fenwick wrote to the Council stating, inter alia:

“Max Brand’s drawing provides that the lower level from the steps down towards Barker Street is to be reduced to the same height as the retaining wall. If Council proposes that the pathway be somewhat higher than the retaining wall so that there is some battered slope down to the retaining wall, this will need to be subject to the proviso that this be to the satisfaction of Mr Brand. The applicant would want to see Council’s plan before final agreement could be reached on the levels.”

17 On 22 June 1995, the Council wrote to Pike Pike & Fenwick the following letter, which is alleged to set out the terms of the agreement between the parties.

“Dear Sir,

Kennedy lane – Proposed Closure and ‘Land Swap’

I refer to your letter dated 16th June, 1995, concerning the abovementioned matter and advise that Council at its meeting held on 20th June, 1995, resolved that:

a. Council would support the closure and purchase of 0.6 metre of Kennedy lane adjacent to No 88 Barker Street including a 1m x 1m splay corner at No 90 Barker Street, subject to the following conditions: -

i. The applicant returning 0.6 metres of his land to the eastern side of Kennedy lane to maintain a 2.4 metre pedestrian pathway in Kennedy lane.

ii. The applicant liaising with all the public utility authorities to ensure that they have no objections to this proposal. Council’s officers will provide the applicant with technical assistance as required.

b. Council will construct a path and set of steps to proper engineering standards (maximum batter of slope 1:4 following the construction of the new retaining wall on the proposed new boundary of No 88 Barker Street with the cost to be borne by the applicant. Should any further retaining walls be required in the laneway from the eastern boundary of No 88 Barker Street to the western side of the steps, Council will be responsible for the cost of these retaining walls. It shall be noted that there is no engineering requirement to lower the levels of Kennedy lane to the level of the top of the retaining wall. Council’s officers will liaise with the applicant’s engineer to provide a satisfactory engineering solution for the level of this pathway.

no

d. Council advertise the proposed lease of an additional 13m x 0.6m of Kennedy lane as per the attached plan Sections 153-157 of the Roads Act, 1993 and subject to:

i. the applicant providing Council with a similar area of land by lease adjacent to No 90 Barker Street.

ii. both proposed leases ensuring that public access along this section of Kennedy lane is continued with a minimum width of 2.4 metres.

e. Council accept a Local Activity Application of a car space for No 88 Barker Street involving the new leased/landscaped areas. At the expiration of any leases, all construction works on these areas and associated areas must be removed and reinstated by the owner of No 88 Barker Street at no cost to Council.

f. All costs involved in the relocation and/or removal of public utility plant as well at any other costs be they real or legal in respect of the closure, lease, and local activity applications must be borne by the applicant.

Your client’s written acceptance to these conditions is requested at your earliest convenience. “

18 The letter proposed in paragraph (a) that the Council would close .6 of a metre of Kennedy lane on the eastern side of No 88 in return for the transfer back of the .6 of a metre of land on the western side of No 90, the strip which had previously been transferred to Mr and Mrs Vasales. The intention was to maintain a 2.4 metre pedestrian pathway along Kennedy lane.

19 Paragraph (b) of the letter dealt with matters of construction and provided for the construction of a pathway and set of steps. It provided that the Council’s officers were to liaise with Mr Vasales engineer, Mr Brand, to provide a satisfactory engineering solution to the level of the pathway. It also provided for the construction of a new retaining wall on the proposed new boundary of No 88 at the cost of the Vasales.

20 Paragraph (d) proposed a swap by way of lease to occur at the roadway on the southern end of Kennedy lane. This was intended to put a slight dogleg into the lane with a view to enabling Mr Vasales to have a car parking area on the eastern side of 88 Barker Street. Paragraph (e) provided for the grant of approval of the use of the car space.

21 Paragraph (f) provided that all costs involved in the relocation or removal of public utility plant and all other costs in respect of the closures, leases and the local activity applications were to be borne by the Vasales.

22 The letter required that there be written acceptance by Mr Vasales of the conditions.

23 Counsel for the Council has submitted that the letter was not capable of acceptance so as to create binding legal relations. He submitted that the letter merely proposed an administrative course of action which was solely for the benefit of the owners of No 88 and No 90, and that the Council could not bind itself to act otherwise than in the interests of the community. He referred to the fact that many of the steps outlined in the letter, such as the closure of part of Kennedy lane, rested in the decision-making of others, such as the Department of Land and Water Conservation.

24 In my view, written acceptance of the letter would have created binding legal relations between the parties. The letter dealt with matters such as the transfer of land, the lease of land, obligations with respect to costs and obligations with respect to construction. All these matters were the proper subject matter of a contract. It matters not that the Council itself did not have authority to achieve all the steps which on its side were stipulated to be done. If the letter had been accepted, the Council’s obligation would have been to do all things that on its part were proper to be done to ensure that the terms of the letter were satisfied.

25 On 29 June 1995, Pike Pike & Fenwick wrote to Mr Vasales as follows:

“Please find enclosed herewith a copy of a letter from Randwick Council dated 22 June last herein.

You will see that Council requests your written acceptance to same.

We suggest therefore that if you are agreeable that you sign the second copy of the letter of 22 June which we have enclosed and return it to us for forwarding onto Council.”

26 The copy letter which Pike Pike & Fenwick enclosed had endorsed on it the words “I, JIM KOUTSOVASILES, hereby accept the terms hereof” and provision for Mr Vasales signature. Presumably, that endorsement was placed on the letter by Pike Pike & Fenwick.

27 Pike Pike & Fenwick did not play any further part in the events which thereafter occurred. If Mr Vasales contacted them again, there is, apart from one answer given by Mr Vasales in the course of his evidence, no mention of that contact in the evidence before the Court. No member of Pike Pike & Fenwick was called to give evidence.

28 Mr Vasales has given evidence that, on receipt of the Council’s letter from Pike Pike & Fenwick, he carefully read the letter and was satisfied with the proposal. Mr Vasales said that he signed the first page of the letter on the appropriate line and faxed the entire letter with his signature on it to the Council.

29 The Council has no record of receiving any such facsimile copy of the letter of 22 June 1995. There is no record in the Council’s files indicating or noting that Mr Vasales agreed or had agreed to the proposal. One officer of the Council who has given evidence, a Mr Rotta, who had extensive contact with the matter going back to 1988, said that he was unaware of any notification by Mr Vasales of his agreement to the terms of the letter. A letter dated 13 November 1997 from the Council to Milios and Co, solicitors for Mr Vasales, said that, “As of 30 October 1997, a search of Council’s files has revealed that written acceptance of these conditions (the letter of 22 June 1995) has not been provided by Mr Vasales.”

30 For reasons which I will later mention, I do not accept Mr Vasales’ evidence that he faxed a copy of the letter to the Council. I therefore reject Mr Vasales contention that he communicated to the Council acceptance of the terms set out in the letter of 22 June 1995.

31 The next event was that, late in 1995, Mr Vasales applied to the Council for permission to construct a new brick fence along the eastern boundary of No 88 and a new brick fence along the western boundary of No 90. The plans attached to the application were drawn by Douroudis Consulting, Civil and Structural Engineers. The plans were prepared in accordance with the proposal set out in the letter of 22 June. The application was deferred by the Council pending the execution of the required lease agreement and transfer of land ownership in accordance with “the Council’s proposal”. Mr Vasales was advised on 13 February 1996 as follows:

“The application has been deferred pending the execution of the required lease agreement and transfer of land ownership in accordance with the Council’s resolution dated 20/6/95 in relation to the purchase of a portion of Kennedy lane.

The applicant is advised, Council cannot approved (sic) of work on two separate properties on a single Local Approval Application. It will be necessary to submit separate application for each property.

Further it is noted that the plan submitted is not correctly drawn to scale, please contact Council’s Environmental Services Department if you have any queries in this regard.”

32 On 26 February 1996, as the Council required a separate application for each proposal, Mr Vasales lodged a further application in relation to the brick fence to be erected on the boundary of 90 Barker Street. Again, the fence proposed accorded with the Council’s letter. This application did not need to be deferred as the proposed construction was on land which was part of No 90. The application was approved by the Council. The relevant plan was numbered 199/96. This showed, inter alia, the location of the proposed footway and a set of steps. Mr Vasales has contended that, by approving the plan, the Council committed itself to constructing a pathway in accordance with that plan. In my view, the approval given had no effect other than to approve the erection of a brick fence on the Vasales’ land in accordance with the plan.

33 On 8 May 1996, Council wrote to residents to say that it had abandoned its decision to provide a set of steps in Barker Street near the subject premises and that the existing steps would be closed off permanently by the use of gates. Following that notification, Messrs Stewart Levitt and Co reactivated the proposal to close Kennedy lane. On 21 June 1996 Mr Levitt wrote to the Council as follows:

“I have resumed acting for Jim Vasales of 88 and 90 Barker Street, Kingsford.

Now that the steps to Barker Street have been closed and the lane is no longer of any utility to pedestrians, my client wishes to partially alleviate the financial burdens of the Council by purchasing Kennedy lane or so much of it as he does not already own (there is 12’ abutting No 90 Barker Street, which he owns but which has not been fenced off), for the Valuer-General’s valuation, which should be obtained to meet this offer.

Please put this offer to the Full Council and advise me when the matter is before Council so that I can address it accordingly, as Mr Vasales’ spokesman.”

34 About this time, Mr Vasales erected a brown metal fence on the western side of No 90. This fence was erected on the existing alignment, not on the one which had been approved in the letter of 22 June 1995 or proposed in plan 199/96. Mr Vasales said in evidence that the fence was a temporary structure which could be moved.

35 On 19 December 1996, the Council wrote to Mr Vasales as follows:

“I am pleased to advised (sic) that following the completion of your installation of brown metal fencing on the western side of your property No. 90 Barker Street, Council has listed the construction of concrete footpaving between the existing footpath in Barker Street and the road carriageway in Kennedy lane adjacent to the southern boundary of No. 90 Barker Street.

Recent site inspection to (sic) revealed that Council will be able to construct the concrete footpaving at similar levels to the existing natural around surface. The proposed concrete path will be approximately 200mm clear of the new fence on the western side of 90 Barker Street.”

36 On 26 February 1996, Mr Vasales lodged an amended application for the extension of the garage at the south east end of No 88. As I read the plan, it adopted the existing alignments. Indeed the plan appears to have been basically the plan which accompanied a similar application in April 1995. The amended application was approved subject to compliance with all the conditions that were imposed under a notification earlier given on 23 May 1995.

37 On 11 March 1997, the Council wrote to Mr Vasales to say that the Council would shortly commence construction of the concrete footpath in Kennedy lane, that the footpath would be constructed at similar levels to the existing natural ground surface and that the proposed concrete path would not contain any steps.

38 On 20 March 1997, a solicitor, Mr Vasso Tsolakis, wrote to the Council on behalf of Mr Vasales as follows:

“Following a conference with Mr Vasales it appears that the diagrams as enclosed in your letter do not correspond with plans that my client has had approved by Randwick Council. Those plans are local approval plan number 199/96.

Mr Vasales is extremely concerned that what Council is proposing to do with the footpath will affect the development of his site and in particular the area of his fence/wall.”

39 On 25 March 1997, Mr Vasales himself wrote to the Council to say:

“I decided to write a letter and put a proposition to you. There is no doubt it is costing both the Council and myself a lot of money and time over this matter of the lane.

My proposal is that I agree to withdraw all complaints made by me to the Council and the Ombudsman to the benefit of both parties, if Council agrees to revert back to the original plan BA 199/96. The reason is that the excess sand in the lane is creating the problem to my property.”

40 The plan there referred to was the plan approved for construction of the brick fence on the western boundary of 90 Barker Street. Later Mr Vasales wrote to the Council:

“I have never had any objections to the transfer in Kennedy lane of the two feet from one side to the other in accordance with our agreement and the plan (199/96) which was passed by Council.

In the lane which is at present with excess sand above the retaining wall affects my privacy and also the weight of the sand will damage my retaining wall creating more problems. To avoid further problems the Council should agree to put in proper drainage and remove all the excess sand.”

This letter contained the final reference to an agreement.

41 About that time, Mr Vasales gave instructions to a Mr Harrison to draw plans for the matters which needed to be done to implement the letter of 22 June 1995. Mr Vasales gave evidence that, on 1 April 1997, he heard Mr Harrison ring the Council about these matters and that he was informed by Mr Harrison that the Council was not proceeding with the proposal for a set of steps. I should note that these events occurred after the Council had written to Mr Vasales on 19 December 1996 and 11 March 1997 to say that the footpath would not contain steps.

42 On 13 May 1997, Milios & Co, solicitors, wrote to the Council to say:

“We are advised by Mr Vasales that Council intends to construct a pathway between the above properties.

We are further advised that Council had in 1995 resolved to construct the proposed pathway in accordance with its letter of 22 June, 1995, a copy of which we enclose for ease of reference.

We note that the current proposal does not conform with the 1995 proposal nor the approved plan of our client (copy of which we enclose).

Our client instructs us to oppose any construction that differs from that plan passed by Council and its engineering department in 1995.”

43 During 1997, the Council had communications with the Human Rights and Equal Opportunity Commission with respect to a complaint by another resident concerning steps in the Council’s area. The complaint was made in respect of an elderly person who had a physical disability and was unable to cope with steps.

44 On 13 November 1997, the Council wrote to Mr Tsolakis, a solicitor who was then acting for Mr Vasales, as follows:

“I note the information contained in John Dimopoulos’s letter dated 21 June 1997. With regard to the various issues raised by Mr John Dimopoulos I advise that the proposed concrete footpath:

1. will generally follow the existing ground levels in Kennedy lane;

2. is appropriately designed given the site constraints and noting the existing steep grade in Barker Street;

3. is suitable for use by persons with disabilities including the visually impaired and people with walking difficulties; and

4. will improve access for people with prams and wheelchairs.”

45 Following communication by Mr Vasales with the Premier of New South Wales, who was his Local Member, and communication by the Premier with the Council, the Council on 13 November 1997 wrote to Mr Vasales as follows:

In order to proceed with the land swap proposal please advise your written acceptance of the conditions contained in Council’s resolution dated 30 November 1993 or subsequent similar resolution dated 20 June 1995

Please note that this will not result in a lower footpath and should not be construed as such. However, you should also note that any future reconstruction of your retaining wall at No 88 Barker Street will undermine any footpath constructed at this location

46 On 2 December 1997, John Hertz & Associates, solicitors, wrote to the Council on behalf of Mr Vasales to say:

“We are instructed to advise that our client wants to proceed with the ‘land swap’.

Our client wants to proceed with the construction of the brick walls on either side of the laneway.

Our client also requires that the steps be constructed in accordance with the approval and the excess sand to be removed by Council.”

47 On 26 January 1998, Mr Vasales wrote to the Council with reference to his earlier application for approval to erect a new brick boundary fence on the eastern side of No 88:

“In reference to my application I want to inform Council that I am ready to proceed in accordance to our agreement. I am asking for an extension of 6 months or until Council makes a proper decision.”

48 On 20 February 1998 John Burrell, solicitor for Mr Vasales, wrote to the Council to say, inter alia:

The Agreement

We have advised our client that a legally binding and enforceable agreement exists between Randwick City Council and Mr Vasales which came into existence in June, 1995.

The agreement was negotiated through Mr Vasales’ previous Solicitors, Pike Pike & Fenwick and concerns a land swap, leasing of reciprocal areas by both parties and construction of a set of stairs (at the southern end of Kennedy lane) and a footpath between 88 and 90 Barker Street.

A copy of the signed agreement is enclosed.
……

Performance of Agreement by Mr Vasales

Under the circumstances described, we have advised our client that the Council cannot unilaterally change any of the terms of the agreement or unilaterally declare itself not bound by any term of the agreement.

Proposed Changes to the Agreement

Council is now proposing to construct a ramp rather than the stairs and pathway as agreed and approved. The proposed ramp involves very different levels to the current arrangement and the impact of the proposed changes are unacceptable to our client.

49 On 2 April 1998, Mr Vasales again wrote to the Council to say that:

“I am ready to proceed in accordance with our agreement. I am asking for an extension of 6 months or until Council makes a proper decision.”

50 On 6 April 1998 John Burrell, solicitor, wrote to the Council to request information as to the position with Mr Vasales’ application of 27 September 1993 to close Kennedy lane.

51 On 28 April 1998, Mr Vasales wrote to the Council proposing that the Council close the lane between the two properties. On 28 May 1998, his solicitor, John Burrell, wrote to the Council proposing, inter alia, that the laneway be transferred to the Vasales subject to a right of way in favour of the Council and the public that would allow pedestrian traffic through the Vasales land at No 90 during daylight hours.

52 I need not discuss the many meetings that were held thereafter or the letters which passed. Mr Vasales’ last stance was expressed in a letter of 4 February 1999 which he wrote to the Council stating:

“These are my options to Randwick City Council.

1. Close Kennedy lane at no further cost.

2. From 1993 until now the victimisation, discrimination, misleading information (as you know), negligence and many things done out of spite has cost me in total close to $100,000.

3. Compromise or I will take legal action, without any further notice.”

53 No land swap took place. The proposed leases became irrelevant once Mr Vasales had enlarged his garage and erected a 13½ metre brick wall on the existing boundary of No 88. From that time on, it was impossible to create the carparking space which had been contemplated in paragraph d of the letter of 22 June 1995. Moreover, the fence on the western boundary of No 90, the metal fence, was erected on the actual boundary of the property, not upon the boundary as proposed in the letter of 22 June 1995.

54 Ultimately, the Council constructed a concrete pathway along Kennedy lane and applied Mr Vasales’ $1,930 towards the costs. Whether or not it is entitled to do so, the Council does not in these proceedings seek recovery of the additional costs from Mr Vasales. The pathway as constructed generally followed the level of the land. The Council did not adopt Mr Brand’s proposal to lower the level of the laneway and it did not include the set of stairs towards the southern end of the laneway which Mr Brand had proposed to offset the lower level.

55 Amongst other reasons which the Council had for adopting that course was that it was in the interests of the public that pathways be graded rather than stepped. Kennedy lane is a public footway. Steps provide inconvenience to handicapped persons and to vehicles such as prams and strollers.

56 I return to the question as to whether Mr Vasales should be believed when he said that, on receipt of the copy of the letter of 22 June 1995 from Pike Pike & Fenwick, he signed in the indicated position and faxed a copy of the letter to the Council.

57 Mr Vasales was strongly biased against the Council. The Council’s refusal to support the closure of Kennedy lane caused Mr Vasales to write strongly worded letters of complaint to the Council, to complain to the Ombudsman, to complain to the Premier and to institute legal proceedings against the Council. So far as I can ascertain, Mr Vasales’ anger against the Council was unjustified. The evidence in the case does not disclose anything in the Council’s dealings with Mr Vasales with which he should have been dissatisfied. The Council made every possible endeavour to accommodate Mr Vasales. But, ultimately, there were two issues on which the Council was not prepared to move. The Council was not prepared to support the closure of Kennedy lane and, from December 1996 it was not prepared to construct a set of steps in Kennedy lane rather than follow the existing level of the lane. On both these issues, the Council acted in what it saw to be the public interest. It considered that Kennedy lane provided ready access to and from Barker Street for those residents and members of the public who wished to use it. Residents did use the lane and objected to its closure. The Council cannot be criticized for acting in the public interest. It was its duty to do so.

58 It is quite clear that Mr Vasales wanted the strip of land running between No 88 and No 90 which was Kennedy lane to be incorporated into the two properties. He first sought that half the lane, a strip of three metres be incorporated. The Council agreed to this and that was implemented. Mr Vasales then sought an additional 600 mm or two feet along the western boundary of No 90. The Council agreed and that was implemented. Mr Vasales then sought total closure of Kennedy lane. The Council refused his application. It was right to do so as it considered that Kennedy lane was a public thoroughfare which was of benefit to the public and was used by residents of the area.

59 Mr Vasales was a poor witness. He appeared to me to give evidence not in accordance with his recollection but in accordance with what he considered to be his best interests. He was argumentative and rambling. He refused to accept that plans that he had lodged were relevant plans. He contended that the plans related to other boundaries or that they were incorrect. There are many pages of transcript in which Mr Vasales failed to answer expeditiously simple questions which were put to him. The likely explanation is that he did not wish to give an answer which might be against his interests.

60 Mr Vasales was prepared to give any answer which might assist his case. For example, he gave this evidence:

61 Mr Vasales first said that he faxed the letter to the Council shortly after he received the document from Pike Pike & Fenwick. Then he said that he faxed it more than once to the Council. He said that that he would have retained a record of the facsimile transmission. The only copy or record of the letter which he produced, however, was a faxed copy of the letter which had been sent to him by the Randwick Council.

62 Mr Vasales’ evidence on this point has no support. His signature on the letter of 22 June 1995 is not accompanied by a date. The transmission has not been found in or referred to in any of the records of the Council and it did not come to the attention of officers of the Council who had the conduct of the matter.

63 Moreover, the evidence is improbable. Had Mr Vasales been agreeable to committing himself to the proposal set out in the letter of 22 June 1995, he would have signed the copy letter and returned it to Pike Pike & Fenwick, as they requested. He would have asked Pike Pike & Fenwick to attend to the swap of land which was proposed and to attend to the leases. He would have asked Pike Pike & Fenwick to ensure that all things that needed to be done were done. There is no convincing evidence that Mr Vasales had any further contact with Pike Pike & Fenwick. That firm did not play any further part in the matter.

64 It seems likely that Mr Vasales deliberately delayed committing himself in the hope that the Council would change its mind about the closure of Kennedy lane. Mr Vasales thought he had two years in which to decide. He gave this evidence:

65 The actions of Mr Vasales did not indicate a commitment on his part to proceeding with the proposal as set out in the letter of 22 June 1995. Although Mr Vasales in 1996 lodged applications for the erection of new brick fences on No 88 and 90, which applications accorded with the Council’s proposal, the construction which he actually undertook was the construction of a brown metal fence on the boundary of No 90, the construction of an enlarged garage on No 88, and the construction of 13 metres of brick fence along the eastern boundary of No 88, all of which took place on the existing alignments. When Mr Vasales was informed in February 1996 that his application for the erection of the new brick fence on the eastern boundary of No 88 had been deferred pending the execution of the required lease agreement and transfer of land ownership in accordance with the Council’s proposal, Mr Vasales did nothing.

66 On 21 June 1996, Stewart Levitt & Co wrote to the Council seeking the closure of Kennedy lane. The failure of the Council to support closure of the lane was one of the subjects of an investigation by the Ombudsman in late 1996 and early 1997. In April 1997, Mr Vasales requested that the lane be closed during the construction of the garage. This request was denied. On 28 May 1998 John Burrell, solicitor for Mr Vasales wrote to the Council with the proposal that the Council close the laneway and sell the land to Mr Vasales. In his letter of 4 February 1999, Mr Vasales sought closure.

67 In the light of all of the evidence, I am satisfied that Mr Vasales did not accept the Council’s offer of 22 June 1995. If, in his own mind, he accepted the offer, which I doubt, he did not communicate his acceptance to the Council. That offer was open for acceptance within a reasonable time. By 19 December, 1996, and 11 March 1997, when the Council wrote to say that it was proceeding with the footpath, the offer had lapsed.

68 The Council’s letter to Mr Vasales of 13 November 1997 in terms offered the opportunity of accepting in writing the terms set out in the letter of 22 June 1995. However, the paragraph in the letter which noted that the contemplated work on the footpath “will not result in a lower footpath” was a clear indication that the Council did not propose to adopt Mr Brand’s levels or to install a set of steps. Indeed, in a letter of the same day to Mr Tsolakis, solicitor for Mr Vasales, the Council made it clear that the footpath proposed would be suitable for use by persons with disabilities and would improve access for people with prams and wheelchairs. Accordingly, although Mr Vasales and his solicitor John Burrell expressed agreement with the terms of the letter of 22 June 1995, their agreement was expressed in such a way as to indicate that they did not accept the Council’s proposal of 13 November 1997. On 20 February 1998, John Burrell wrote, “our client does not consent to the ramp”. Accordingly, the negotiations which took place at that time did not result in an agreement between the parties.

69 It follows that , as there was no concluded agreement between Mr Vasales and the Council, the present application must fail. There is no agreement in respect of which specific performance may be ordered.

70 It is therefore unnecessary for me to outline all the issues which have been raised relating to discretion. Mr Vasales has relied upon factors such as the lack of privacy, the fall of sand and dirt into No 88, the possible problems which might arise in constructing a retaining wall along the eastern boundary of No 88 if additional land is not acquired and the problems encountered with the garage and the roadway having regard to the level of the footpath. The Council for its part has alleged that, by building the metal fence on the western boundary of No 90 and by erecting the enlarged garage and the brick wall on the boundary of No 88, the rationale for the proposed land swap and for the lease agreements has disappeared.

71 It is always difficult for a judge to form a final view on an issue which does not arise for decision. However, my present view is that, had an order for specific performance been otherwise appropriate, I would have refused to make the order. There are two reasons for this view. The first is that of delay, and the second is the public interest. I am of the view that Mr Vasales did not seek to implement the proposal set out in the letter of 22 June 1995 until after the Council had changed its mind and he failed to institute proceedings until after the concrete footway was in place. If Mr Vasales had been content to accept and proceed with the Council’s proposal, he should have acted in June 1995. He should then have provided his solicitors with the signed letter and instructed them to proceed on his behalf. He did not do so because, I believe, he continued to seek closure of the lane.

72 The other, and perhaps even more important factor is that it is in the interests of the public that the pathway be constructed in a manner that allows persons with disabilities to walk along it, and which permits the passage of wheeled vehicles such as prams, wheelchairs and so on. In taking the view which it has, that the pathway be constructed without a set of steps, the Council has acted in the public interest. To my mind, this is an important factor to which the Council should have regard and it outweighs the interest which Mr Vasales has in protecting his property.

73 In the circumstances, I am of the view that, had an agreement been established, specific performance should nevertheless be refused and Mr Vasales should be left to any remedy he has in damages. In these proceedings, he does not seek an order for damages.

74 For the reasons I have given, the application will be dismissed with costs.

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Last Modified: 07/09/2002

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Koutsovasiles v Randwick City Council [2002] NSWSC 588

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CITATION:	Koutsovasiles & Ors v Randwick City Council [2002] NSWSC 588
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 3352/99
HEARING DATE(S):	12 April 2002; 27-30 May 2002 inclusive
JUDGMENT DATE:	5 July 2002
PARTIES :	Jim Koutsovasiles, Matoula Koutsovasiles and Chris Jim Koutsovasiles v Randwick City Council
JUDGMENT OF:	Davies AJ at 1

COUNSEL :	M. Galvin (Plaintiff) A.J. Thompson (Defendant)
SOLICITORS:	Creagh & Creagh (Plaintiff) Bowen & Gerathy (Defendant)
CATCHWORDS:	Local Government - whether a Council entered into contract with property owners - whether a proposed arrangement was the proper subject matter of contract - whether an order of specific performance should be refused on public interest grounds
DECISION:	Application dismissed with costs.