Nicholas Vassiliadis v Mosman Municipal Council

[1998] NSWLEC 83

Land and Environment Court

of New South Wales

CITATION:

Nicholas Vassiliadis v. Mosman Municipal Council [1998] NSWLEC 83

PARTIES:

APPLICANT
Nicholas Vassiliadis

FIRST RESPONDENT
Mosman Municipal Council

SECOND RESPONDENT
Mr E Davis and Mrs I Davis

FILE NUMBER(S):

40001 of 1998

CORAM:

Cowdroy J

KEY ISSUES:

:-

LEGISLATION CITED:

Land and Environment Court Act 1979

CASES CITED:

The Minister for Immigration and Ethnic Affairs of Commonwealth of Australia Ex parte Lai Qin (1997) 186 CLR 62 per McHugh J at p 624-625;
Bignold J in Hayden Theatres Pty Limited v Penrith City Council & Anor (unreported, NSWLEC, 40210 of 1995);
Cretazzo v Lombardi (1975) SASR 4 per Bray CJ at p 11).

DATES OF HEARING:

02/11/98

DATE OF JUDGMENT:

11/03/1998

LEGAL REPRESENTATIVES:

APPLICANT
Mr J A Ayling Barrister
Abbott Tout
RESPONDENT
Ms J Walsh Solicitor
Mr A J J Thompson Barrister
Hill Thomson & Sullivan
PJ Donnellan & Co

JUDGMENT:

1. By application Class 4 filed 5 January 1998 Mr Vassiliadis ("the Applicant") sought declaration of invalidity of Building Approval No 563/95 issued by Mosman Municipal Council ("the Council") in relation to premises known as No 34 Julian Street, Mosman ("the premises") and various consequential orders relating to the demolition of a sandbox, vents on the eastern wall of the building at the premises and for the removal of a wall on the common boundary between No 21 Burton Street, Mosman and the premises.

2. Building approval had been granted on 27 October 1997 for the planter box and subsequent to the filing of the Application Mr and Mrs Davis ("the Second Respondents") made application to the Council for building approval in respect of the sandbox, vents and common wall, each being the subject of relief in paragraphs 3, 4 and 5 of the Application.

3. It appears that the Applicant was never informed by the Respondents of the existence of the building approval for the planter box nor of the applications which were lodged in respect of the other matters the subject of the proceedings.

4. The proceedings had been set down for hearing in June 1998 but due to the illness of an important witness the hearing was vacated. There appears to have been a gap in communication between the parties until 19 October 1998. On that day an affidavit sworn by Professor Laszlo Peter Kollar was filed and a letter was written by solicitors for the Second Respondents to the Applicant's solicitor offering either to demolish the wall which was the subject of the claim for relief as contained in paragraph 5 of the Application or alternatively to obtain a building certificate in respect thereof. Further correspondence ensued. On 21 October 1998 and 22 October 1998 the solicitors for the Second Respondents confirmed to the Applicant's solicitors the fact that the Applicant was maintaining his application for removal of the wall upon the common boundary between his property and the premises. By letter dated 27 October 1998 the Second Respondents solicitor informed the Applicant's solicitor that his clients had made ap

plication to the Council for approval to demolish the subject wall. In the same letter it is pointed out that the remainder of the complaints were, in effect, trivial.

5. The Applicant's solicitors responded to such correspondence by facsimile on the afternoon of 30 October 1998 advising that the Applicant would be seeking orders 5 (concerning the demolition of the wall) and 7 (costs) of the Application. The Second Respondents solicitors replied indicating that their clients would agree to such order and would be seeking an order for costs.

6. The Second Respondents are willing to provide an undertaking to the Court that they will pursue their application for approval to demolish the offending section of the wall which was the subject of paragraph 5 of the Application.

7. So far as costs is concerned the Applicant seeks an order for costs and points to the fact that the institution of the proceedings was necessary and has resulted in an undertaking being given to the Court to the same effect as an order. It asserts that it was never informed of the steps which had been taken by the second Respondents subsequent to the filing of the Application concerning approvals and that no real steps towards reaching a settlement was achieved until the week preceding the commencement of this hearing. As to the question of abandonment of its other claims for relief, the Applicant points to the fact that only one affidavit was filed, namely that of Professor Kollar on 19 October 1998.

8. The Court has accordingly required to exercise its discretion in respect of any order for costs pursuant to Section 69 of the Land and Environment Court Act 1979. Where parties have reached agreement as to the merits of the matter it is not necessary for the Court to attempt to reach a conclusion whether the Application would have succeeded (see Re The Minister for Immigration and Ethnic Affairs of Commonwealth of Australia Ex parte Lai Qin (1997) 186 CLR 62 per McHugh J at p 624-625: see also Bignold J in Hayden Theatres Pty Limited v Penrith City Council & Anor (unreported, NSWLEC, 40210 of 1995). The discretion of the Court is absolute provided it is exercised judicially (see Cretazzo v Lombardi (1975) SASR 4 per Bray CJ at p 11).

9. It was necessary for the Applicant to institute the proceedings in order to obtain the relief which was first offered unequivocally by the Second Respondents late in the afternoon of 30 October 1998, that is on the last day of business prior to the date fixed for the hearing of these proceedings. Prima facie, the Applicant is entitled to its costs. The question is whether there are any factors which warrant the general rule being displaced.

10. The Second Respondents seek an order for costs. It relies upon the fact that the principal ground of contention related to the planter box in respect of which approval had been given prior to the institution of the proceedings. It also relies upon the fact that the Applicant could have ascertained from the Council the current status of the position concerning approvals. It also points to the fact that the Applicant has abandoned all but one its substantive claims for relief. On this basis, it says that it has been disadvantaged because it had prepared the case, at least up until 30 October 1998, upon the basis that all matters would be argued. The Second Respondents also says that the matters in dispute are "de minimis" and that the wall, the subject of the dispute, was constructed effectively for the benefit of the Applicant.

11. It appears there was an unfortunate lack of communication between the parties following the institution of proceedings. Had the Second Respondents informed the Applicant of the steps which it was taking, and of the existing approval for the planter box as early as March 1998 the present proceedings may have resolved much earlier. The failure to communicate resulted in the Application proceeding as if it were to be contested upon all grounds. It is apparent that little evidence was adduced in respect of those matters the subject of the Application, since only one affidavit was filed by the Second Respondents.

12. The Court is able to infer from the letters of 19 October 1998, 21 October 1998, 22 October 1998, 27 October 1998 and 29 October 1998 that the Second Respondents were anxious to avoid a contested hearing. However, at this late stage it was too late to avoid the costs of the hearing. If such indication had been provided earlier, the matter may have resolved at an early stage, thereby rendering further proceedings, and costs, unnecessary. The wall was built without consent, and the Second Respondents did not suggest prior to 19 October 1998, that they were prepared to co-operate in any way.

13. The Court considers that in the circumstances the Second Respondents is liable to meet the costs of the Applicant.

Orders

15. The Court therefore orders:-

(1) The proceedings be dismissed.

(2) The Second Respondents pay the Applicant's costs.

(3) The Court notes the following undertaking:

The Second Respondents to pursue application to the First Respondent No D8.1998.689.1 for approval to demolish a section of concrete block wall on drawing DA/BA 1 Amendment J and that upon the granting of such approval they demolish and remove the said wall within seven days from such grant.