Lismore City Council v Collins

[2001] NSWLEC 81

Land and Environment Court

of New South Wales

CITATION:

Lismore City Council v Collins [2001] NSWLEC 81 revised - 30/04/2001

PARTIES:

APPLICANT:
Lismore City Council

RESPONDENT:
Collins

FILE NUMBER(S):

40162 of 2000

CORAM:

Bignold J

KEY ISSUES:

Costs :- in civil enforcement proceedings where substantive relief not resisted.

LEGISLATION CITED:

Local Government Act 1993, s 124

CASES CITED:

DATES OF HEARING:

23 February 2001

EX TEMPORE
JUDGMENT DATE :

02/23/2001

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J M Atkin, Barrister
SOLICITORS
Walters

RESPONDENT:
Mr Collins in person
SOLICITORS
N/A

JUDGMENT:

IN THE LAND AND

Matter No. 40162 of 2000

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

23 February 2001

LISMORE CITY COUNCIL

Applicant

v

COLLINS

Respondent

JUDGMENT

Bignold J:

1. This is a Class 4 proceeding in which the Council seeks mandatory orders in relation to a building, being a dwelling house owned and occupied by the Respondent at No 8 Stevenson Street Goonellabah, which building has been known for the past three or more years to be structurally unsound apparently by virtue of being erected upon land that had been filled in a manner not sufficiently stabilised to support the structure.

2. The Council has known about the state of the building since 1997, as has the owner, who has continuously occupied the dwelling as her home during the past decade including occupation of it in its known structurally unsound state for these past three or four years. The Council commenced the proceedings with obvious and understandable reluctance on 23 October 2000 after writing to the Respondent by its Solicitors on 25 August 2000 in which the history of the matter was canvassed. The Council expressed its understanding that the Respondent was in communication with the Department of Fair Trading in relation to the insurance claim she had brought against the builder and that she was experiencing delays in finalising that claim, but pointing out that Council’s direct communications with the Department of Fair Trading suggested that the Department had approved funds in early June 2000, but expressing an understanding that there had been some delay in progressing the rectification works.

3. It was in these circumstances the Council’s Solicitor notified the Respondent that the Council “is unable to allow the current situation to continue and requires that you immediately take steps to effect proper repairs to the dwelling”, and …. “should you fail to do so the Council will reluctantly have no alternative other than to commence proceedings to require compliance with the earlier order issued on 25 May 1998 and to seek appropriate orders”.

4. Despite the urging of the Respondent to give the matter urgent consideration, it appears, unfortunately, that the Council’s Solicitors’ letter was not responded to.

5. That provides the immediate background to the commencement of the proceedings. The proceedings were before the Court on two occasions, the original callover in November being the return date and then again on 12 December 2000 when directions were given for the filing of affidavits and the case was fixed for hearing, originally in Lismore, for today but that fixture was changed to Sydney and the parties were appropriately notified.

6. Ms Collins appears unrepresented today and does not oppose the relief claimed by the Council for a mandatory order requiring the structural stabilisation of the property to be effected forthwith. However, she does oppose any order for costs on the basis that she has been in large measure the hapless victim in this case and has only earlier this week received advice from the Department of Fair Trading that it has been prepared to increase the amount to be awarded pursuant to her insurance claim and has made an allocation of funds which will be sufficient to enable the work of stabilisation to be effected permanently.

7. Earlier on in the history of the case some temporary repair work was undertaken by the Respondent and the Council funded, I think, by the Department of Fair Trading but that work was of an emergency and temporary nature and did not finally resolve the problem of the building’s lack of structural stability. Council had issued an emergency order pursuant to its statutory powers under the Local Government Act1993 in 1998 requiring the rectification work to be carried out. It seems that that Order was never entirely complied with, save for the temporary repairs which did not exhaust (ie entirely satisfy) the requirements of the order.

8. In large measure the present proceedings are in the nature of the enforcement by judicial order of the need to comply with the statutory notice given by the Council back in 1998. I think the Council obviously accepts that the non-compliance with that order was by no means wilful or flagrant, and from the evidence in the case the Council obviously accepted that in large measure the compliance with the order would be dependent upon the Respondent successfully making an insurance claim to the Department of Fair Trading.

9. Unfortunately, the final decision by the Department of Fair Trading allocating the necessary funds for the permanent rectification work to be undertaken has only been forthcoming in the last week and the proceedings as I have mentioned earlier were commenced in October last year and finally fixed for hearing by the Court in December last year. With different timing of the same material circumstances no doubt the case would not have been brought, and the costs would not have been incurred, but that is to look at the position with the benefit of hindsight, and that is not an appropriate way to proceed to a determination.

10. The question of costs in the case must be dealt with by the Court in accordance with the parameters settled for the exercise of judicial discretion and those parameters, in a case such as the present, lead to the result that the Council should be entitled to its costs in the proceedings. Its action, in bringing the proceedings, after exhibiting great patience and forbearance and understanding of the plight of Ms Collins, is perfectly understandable. However, it was entirely reasonable for the Council to conclude towards the end of 2000 that the problem which had existed for now three or so years needed to be dealt with in a permanent fashion and in a far more satisfactory fashion than the temporary rectification works had yielded. Accordingly, the Council in bringing the proceedings, and pursuing them, as it has done, has acted entirely reasonably.

11. The Respondent’s position, however, attracts much sympathy. As I say in realistic terms, Ms Collins’ ability to deal with the problem was, and is, very dependent upon the outcome of her claim to the Department of Fair Trading and that outcome has involved a long process which has only recently been concluded, fortunately in a manner that will enable Ms Collins to at last have the permanent rectification works undertaken.

12. There are no circumstances that permit me to exercise the costs discretion otherwise than in accordance with principle and the relevant principle of costs following the event, in the present case bespeaks an order that the Council should receive its costs, and I so order.

13. I also would point out, as was pointed in the course of argument, for the benefit of Ms Collins, whose patience and perseverance in this saga are to be commended, that the order for costs ought not be seen as the final “slap in the face”, as it were. Although made, she may apply to the Court if need be for time to pay including an application to pay by instalments and she may well think it in her interest to put her plight to the Council. The making of the order of the Court, of course, leaves the Council with the option as to whether it enforces the order and it would seem that in the circumstances of this case, Ms Collins’ plea for sympathetic consideration by the Council might well be made by her. All these matters, however, are beyond the Court’s power and I must leave it to her and the Council.

14. Liberty to apply is granted in relation to the outworking of the mandatory order that I propose to grant in accordance with paragraph 1 of the originating process with a slight amendment that I have made with the Council’s approval to that paragraph. The liberty to apply is also extended to Ms Collins in relation to the costs order that I propose to make.

15. For all the foregoing reasons therefore, I make the following orders:

1. The order as claimed in paragraph 1 of the originating process filed on 23 October 2000 with the words inserted after the words “similarly qualified consulting engineer” the words “whose specification is approved by the Lismore City Council”.

2. Order the Respondent to pay the Applicant’s costs of the proceedings in the sum agreed or failing agreement as assessed.

3. Grant the parties liberty to apply in relation to both mandatory order and the costs order.