Liverpool City Council v Kumaragamage P.R

[2005] NSWLEC 173

Land and Environment Court

of New South Wales

CITATION:

Liverpool City Council v Kumaragamage P.R [2005] NSWLEC 173

PARTIES:

APPLICANT
Liverpool City Council

RESPONDENT
Prabha Ranjee Kumaraagamage (also known as Prabha Ranjee Kumaragamage-Dona)

FILE NUMBER(S):

40052 of 2003

CORAM:

Talbot J

KEY ISSUES:

Costs :-

LEGISLATION CITED:

Environmental Planning and Asssessment Act 1979
Land and Environment Court Act 1979 s 69
Local Government Act 1993

DATES OF HEARING:

07/03/2005

EX TEMPORE JUDGMENT DATE:

03/07/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr I J Hemmings (Barrister)
SOLICITORS
Marsdens Law Group

RESPONDENT
Mr Kumaragamage (Agent)
SOLICITORS
n/a

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

7 March 2005

40052 of 2003 Liverpool City Council v Prabha Ranjee Kumaragamage (also known as Prabha Ranjee Kumaragamage – Dona)

JUDGMENT

1 Talbot J: The litigation that has been concluded today has a long history since the proceedings were first commenced on 20 January 2003.

2 During the period since the proceedings were commenced, the position of Prabha Ranjee Kumaragamage (also known as Prabha Ranjee Kumaragame-Dona) (“the respondent”) has varied from time to time from a strong opposition to the Council’s position and claims for orders, to a situation where, in respect of at least one issue, ultimately no submissions were made to the contrary of the Council’s position. I think it is fair to say that the respondent has demonstrated throughout a definite concern that she has been placed in an unfair position by the Council and that she clearly believes that she has not been treated in a way that accords with what is expected of a Council exercising a statutory duty.

3 The evidence that adduced demonstrates that prior to formal action being commenced by the filing of a class four application on 20 January 2003 there was during the year 2002 a number of, what I describe as confrontations between the respondent, Council officers and representatives of the respondent. Inspections were carried out at the property, ultimately with the benefit of a search warrant. The Council has given evidence of issuing letters and formal notices pursuant to the Local Government Act albeit, the letters and the notice are claimed to have not been received, it appears they were sent to the recorded address of the respondent.

4 Mr Kumaragamage has submitted from the bar table that he personally has attempted to resolve the issues between his wife and the Council on a face to face basis from time to time and that the response was that as the matters were before the Court they were left to be determined by the Court.

5 The record will show that ultimately in the proceedings brought by the Council, the Council was successful in obtaining a declaration and orders requiring, in effect, that the use of the property to be brought into conformity with the requirements of the law.

6 That nevertheless left issues raised by the respondent by way of a cross claim, which had been particularised, and a second cross claim. There was a separate hearing last year in relation to a strike out motion in respect of the matters raised by the cross claims. The respondent cross claimant was successful to some extent in that respect, in that part of the claims were struck out, otherwise, notwithstanding the perceived weakness of the position, the Court allowed the cross claimant to continue with the remaining aspects of the cross claims.

7 Having regard to the protracted history of the matter, specific directions were made for the purposes of ensuring that the future conduct of the cross claims were dealt with in such a way that the evidence to be relied upon and the position of the parties could be fully understood and appreciated, not only as between the parties, but by the Court.

8 As a consequence of those directions not being complied with by the cross claimant, the Court decided this morning that the cross claims should be struck out for want of prosecution.

9 Mr Kumaragamage who appears for the cross claimant put a number of matters to the Court, but recognised and I think quite properly, that the failure to essentially comply with the directions made on the 1 November 2004 must lead to a consequence that the proceedings be struck out.

10 The Court therefore is faced with a situation where the Council as applicant in the main proceedings and as cross respondent to the cross-claims has been ultimately successful. In normal circumstances that would mean that the Court might be expected to exercise its discretion in relation to costs pursuant to s 69 of the Land and Environment Court Act 1979 by making an order for costs in favour of the Council.

11 Mr Kumaragamage however has made a submission that as I understand it, there should be no order as to costs, or at least a limited order as to costs, having regard firstly to the way in which the Council proceeded to pursue the litigation without notice in the first place secondly, without response to representations made by Mr Kumaragamage and ultimately a challenge to its own document, which on its face was a building permit issued that recognised the premises could be converted from a single dwelling to two dwellings.

12 The difficulty for the respondent throughout has been that there was no attempt to show that she ever relied on the building permit. Nevertheless I found that the issue of the building certificate was an invalid exercise of the power because it permitted a prohibited use.

13 Mr Kumaragamage refers to the introductory notes to chapter 7 of the Local Government Act 1993 to support his submission that a Council has an obligation to be fair and to take reasonable steps to foreshadow the making of any orders and that the making of the orders, such as it did, went beyond the regulatory power of the council.

14 The claim that has been made by the Council is as a consequence of an alleged breach of the Environmental Planning and Assessment Act 1979 with consequential orders restraining that use. There is no basis for the respondent’s argument that a prerequisite to the Court making any orders in that regard is the issue of a notice pursuant to the Local Government Act, or any other provision in that respect.

15 The fundamental submission made by Mr Kumaragamage is that it is not an appropriate step on the part of a council to first inform a citizen that there is an alleged contravention of the law by serving a class four application. In other circumstances there may well be some substance in such a submission, but in the present case the facts do not support a peremptory action on the part of the council and indeed in the 12 months prior to the commencement of the class four proceedings, there were a number of confrontations which could have left the respondent in no doubt that there was a challenge to the continued use of the premises.

16 I mentioned earlier that notices were issued, even if I accept that they were not received. Nevertheless I am satisfied that the Council did take steps in that regard by issuing notices and letters, albeit they may have been to an address which did not facilitate a communication to the respondent through no apparent fault on the part of the Council.

17 I am not satisfied in all of the circumstances that there should be a special costs order. The respondent cross claimant has been represented by her husband in a lay capacity. There were indeed some aspects of the case that needed to be litigated in order to resolve the legality of the use. A building permit, or a form of building permit, was produced and it certainly laid the foundation for an argument against the Council’s position. Ultimately of course the Court did not find in favour of the respondent in that respect for the reasons that were published in the Court’s judgment.

18 So far as the cross claims are concerned, they were not pursued effectively for whatever reason that may be. Mr Kumaragamage has indicated to the Court that pressures of other business did not enable him to attend to the directions that were made to a very large extent for the benefit of the cross claimant to enable the matters to be litigated, identified and made clear. It is the failure to comply with those comprehensive directions that ultimately brought an end to the cross claims.

19 I am now informed that the properties have been sold and that there no doubt has been little utility served by the making of the orders that the Court, but I am not aware of how that eventually had a bearing on the commercial outcome.

20 It is appropriate therefore having regard to the whole of the history of the conduct of these proceedings, including the actions taken by the Council beforehand, that the respondent be ordered to pay the costs of the Council in relation to the claim and that the cross claimant be ordered to pay the costs of the Council cross respondent in relation to the cross claims.

21 The exhibits may be returned.

22 HEMMINGS: For the costs of the cross claim, does your Honour include in that the notice of motion?

23 HIS HONOUR: The costs, all the costs associated with the proceedings.

24 HEMMINGS: I just wanted to clarify.