Rajendran v Tonkin - [2004] VSCA 43

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 6226 of 2000

ADRIAN RAJENDRAN and MARIA RAJENDRAN	First and Second Appellants
	(First and Second Defendants)
v.
RAYMOND WILLIAM TONKIN	Respondent (Plaintiff)

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JUDGES:	BUCHANAN and EAMES, JJ.A. and MORRIS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 February 2004
DATE OF JUDGMENT:	5 April 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 43

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Heritage Act 1995 – Scope and purpose of s.168 – Nature of discretion to order that works be performed to remedy a contravention of the Act – A broad discretion is given by s.168 - No failure to take into account a consideration which the court is bound to take into account - Costs - No basis to award indemnity costs.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr C.W. Porter	Wood Fussell
For the Respondent	Mr Mark Dreyfus, Q.C. Mr B.F. Quinn	Victorian Government Solicitor

BUCHANAN, J.A.:

I agree with Morris, A.J.A. that, for the reasons he has stated, the appeal should be allowed for the limited purpose of substituting an order for costs on a party and party basis for the order for costs on an indemnity basis.

EAMES, J.A.:

For the reasons given by Morris, A.J.A., I agree that the appeal should be allowed against the order made by the learned trial judge on 17 May 2002 that the appellants pay the respondent’s costs on an indemnity basis. That order should be set aside and in lieu therefor there should be an order that the appellants pay the respondent’s costs, including reserved costs, on a party and party basis.

For the reasons given by Morris, A.J.A., the appeal against the orders made by the learned trial judge on 16 May 2002 should be dismissed.

MORRIS, A.J.A.:

On 16 May 2002 a judge in the trial division has made orders, pursuant to s. 168 of the Heritage Act 1995 ("the Act"), that the appellants perform certain works to a dwelling located in Riversdale Road, Camberwell. On 17 May 2002 the judge further ordered that the appellants pay the respondent's costs on an indemnity basis. The works that the appellants were ordered to perform involve the construction of a roof over part of the dwelling, the construction of internal partitions, the installation of a ceiling and associated matters. The purpose of the works is to remedy a contravention of the Act which occurred when part of the roof of the dwelling was removed by the appellants in 1999. The appellants now submit that the trial judge made a number of errors in making the orders and, in particular, failed to take into account certain considerations which are said to be relevant. Before considering these alleged errors it is desirable to set out some background matters and the nature of the powers given by s. 168 of the Act.

Background

The principal purpose of the Act is to provide for the protection and conservation of places and objects of cultural heritage significance and the registration of such places and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] VSCA 43
Decision Date: 5 April 2004

CaseChat Overview and Summary

Rajendran v Tonkin involved a dispute concerning the enforcement of the Heritage Act 1995, specifically section 168. The applicant sought a court order to compel the respondent to carry out works to rectify a contravention of the Act. The respondent argued that the court's discretion under section 168 was too broad and that the applicant had not taken into account relevant considerations. The case was heard in the Supreme Court of South Australia.

The court had to determine the scope and purpose of section 168 of the Heritage Act 1995 and whether the applicant had exercised the discretion granted by the statute appropriately. It was essential to clarify the nature of the discretion provided to the court and whether it was properly exercised. The respondent further argued that the court failed to take into account considerations that it was bound to consider, which would render the decision invalid.

In delivering its judgment, the court found that section 168 of the Heritage Act 1995 grants a broad discretion to order works to remedy a contravention of the Act. The court was not bound to consider specific factors, and the applicant had not failed to take into account any consideration that it was required to consider. Therefore, the court's discretion was exercised appropriately. Additionally, the court found no basis to award indemnity costs to the respondent.

The court dismissed the respondent's application for costs and affirmed the applicant's order compelling the respondent to perform the required works.

Orders