Lane Cove Council v Ross (No 15)

[2013] NSWLEC 206

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lane Cove Council v Ross (No 15) [2013] NSWLEC 206
Hearing dates:	29/11/13
Decision date:	29 November 2013
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	The respondent is to pay the applicant's costs to date of the respondent's notice of motion filed on 22 November 2013
Catchwords:	COSTS - of notice of motion seeking suspension of orders pending determination of an appeal and variation of hearing date of proceedings for contempt for disobeying the orders.
Cases Cited:	CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (in liq) (No 2) [2011] NSWLEC 91 Lane Cove Council v Ross (No 14) [2013] NSWLEC 87 Victoria v Sutton [1998] HCA 56, (1998) 195 CLR 291
Category:	Principal judgment
Parties:	Lane Cove Council (Applicant) Raymond Ross (Respondent)
Representation:	COUNSEL: N Eastman (Applicant) M Fraser (Respondent) SOLICITORS: Pikes & Verekers Lawyers (Applicant) Duncan Scott Lawyers (Respondent)
File Number(s):	40628/12

EX TEMPORE Judgment

1. This is a costs matter. On 22 November 2013 the respondent, Mr Raymond Ross, filed a notice of motion in which primarily he seeks an order suspending orders made by Pepper J on 14 June 2013 in these civil enforcement proceedings brought by Lane Cove Council, and vacation of the hearing date (5 December 2013) of Council's motion for contempt against him for disobeying those orders. The orders required Mr Ross, within 90 days, to demolish or cause to be demolished certain unauthorised works to the dwelling-house at 8 Bayview Street, Northwood, rebuild and/or reinstate the property in accordance with a specified development consent, and to do so in accordance with specified recommendations: Lane Cove Council v Ross (No 14) [2013] NSWLEC 87.

1. The basis of Mr Ross' motion is that he has filed a notice of appeal, albeit out of time, against the Court's June 2013 orders.

1. During the hearing of his motion this afternoon, Mr Ross gave written undertakings to the Court including (a) that by himself or through his servants, agents or employees he will conduct no work or works on that property unless and until released from this undertaking by the Court; and (b) that he would pursue his appeal against the orders diligently by further undertaking to file a motion seeking extension of time for filing and service of a notice of appeal, and expedition of that motion and the appeal proceedings.

1. Upon those undertakings being given by Mr Ross to the Court today, by consent I ordered that (1) the orders of the Court made on 14 June 2013 are suspended on the terms of that undertaking; (2) the hearing date of 5 December 2013 for the contempt proceedings brought by the Council for failure to comply with those orders is vacated; (3) (procedural) orders in relation to the contempt proceedings made on 15 October 2013 that have not yet been complied with are vacated; (4) the Council's motion for contempt and statement of charge are adjourned to 20 December 2013 before the List Judge for mention; and (5) Liberty to restore on 24 hours notice.

1. It is against that background that the Council now seeks an order for the costs of Mr Ross' notice of motion to date. That is opposed by Mr Ross who submits that such costs should be reserved because it is arguable, and (he says) no doubt will be argued in the Court of Appeal, that the Council ought to have taken steps to join the owner of the land, who is a third party, to the civil enforcement proceedings before the June 2013 orders were made, particularly as Pepper J did not accept the idea that a transfer of the land by Mr Ross to a third party was a sham. Mr Ross is able to put this submission because his notice of appeal includes grounds of appeal to the effect that the orders made by Pepper J should not have been made because it was a denial of natural justice to the third party owner. On that point he cites CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (in liq) (No 2) [2011] NSWLEC 91 at [12] per Craig J quoting McHugh J in Victoria v Sutton [1998] HCA 56, (1998) 195 CLR 291 at 316.

1. Mr Ross' submission might have more force (although it would not necessarily carry the day) if the costs in issue were the costs of Council's contempt proceedings. However, the costs in issue that the Council presently seeks are its costs of Mr Ross' notice of motion.

1. His submission should also be balanced against the following chronology, which is emphasised by the Council.

1. Mr Ross was required by the orders of 14 June 2013 to comply with the orders within 90 days but did not do so within that time or at all. On 23 September 2013, the 90 days having expired, these contempt proceedings were commenced.

1. On 4 October 2013 Mr Ross filed a notice of appeal. It was filed a month out of time. He therefore needs an order from the Court of Appeal extending the time for filing and service, which he has not yet obtained. On 10 October 2013 the notice of appeal came to the notice of the Council's solicitor. It appears that it has not been formally served on the Council.

1. On 15 October 2013 there was a directions hearing in relation to the Council's contempt proceedings. Counsel for the Council informed the Court of the existence of the appeal. Mr Ross did not appear. Directions were made to progress the contempt proceedings towards a hearing and fixed the hearing for 5 December 2013. On 5 November 2013, Mr Ross wrote a letter to the Registrar of this Court which evidences that he was aware of the contempt proceedings and in which he indicated that he had appealed.

1. It was not until 22 November 2013 that he filed the notice of motion with which I am dealing today, as a result of his retaining solicitors. Previously he had no legal representation.

1. Throughout this period the evidence shows that he has openly defied the orders made on 14 June 2013 and continued with construction of the dwelling house on the subject property.

1. Against this background the Council submits, and I accept, that its opposition to Mr Ross' notice of motion until the hearing today may well have been materially different if his notice of motion had been filed earlier and by no later than before the directions hearing in relation to the contempt proceedings on 15 October 2013, and if the undertakings to the Court that he gave today had been given in a more timely way.

1. I consider that the matters referred to at [7] - [13] above outweigh the matter put forward by Mr Ross and justify an order that he pay Council's costs to date of his notice of motion.

1. The order of the Court is that that the respondent pay the applicant's costs to date of the respondent's notice of motion filed on 22 November 2013.

Decision last updated: 02 December 2013