Tavitian v City of Playford (No 2)

[2015] SASCFC 18

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Civil)

TAVITIAN v CITY OF PLAYFORD (No 2)

[2015] SASCFC 18

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)

24 February 2015

PROCEDURE - COSTS - APPEALS AS TO COSTS

A Judge of the Environment, Resources and Development Court made orders on the application of the City of Playford under section 85 of the Development Act 1993 (SA) that Mr Tavitian cease using his residential land for the collection or storage of scrap or junk and that he remove all items stored on the land except for certain specified items.

On Mr Tavitian’s appeal against the orders, the Court held that the Council by its actions did not contravene or act unlawfully by reason of the Land Acquisition Act 1969 (SA) and the Judge had power to make the removal order which he did: Tavitian v City of Playford [2014] SASCFC 82. The Court gave to Mr Tavitian an opportunity to co-operate with the Council in defining a list of items which collectively might be stored on the land as part of or incidental to its ordinary residential use and reserved the question of costs.

Mr Tavitian and the Council subsequently negotiated and agreed on an alternative form of the removal order, subject to four residual differences.

Held by the Court:

1.       The four residual differences should be resolved in favour of the version of the order proffered by the Council (at [7]-[12]).

2.       The Council being substantially successful on the appeal, costs should follow the event (at [14]).  The appeal against the costs order made by the Judge should be dismissed (at [23]).

3.       Appeal allowed to the limited extent of varying the removal order in the terms agreed by the parties and pursuant to the Court’s decision on the four residual issues (at [24]).

4.       Order that Mr Tavitian pay the Council’s costs of the appeal (at [25]).

Land Acquisition Act 1969 (SA), referred to.
Tavitian v City of Playford [2014] SASCFC 82, considered.

TAVITIAN v CITY OF PLAYFORD (No 2)
[2015] SASCFC 18

Full Court:      Kourakis CJ, Blue and Stanley JJ

THE COURT:  

1. In this appeal, we previously delivered reasons for judgment in which we rejected Mr Tavitian’s principal contention that the orders made by the Judge at first instance were invalid because their effect was to acquire an interest in his land without payment of compensation contrary to the Land Acquisition Act 1969 (SA).[1]

   [1]    Tavitian v City of Playford [2014] SASCFC 82

2. In relation to Mr Tavitian’s subsidiary contention that the width of the order made by the Judge for removal of materials from the land (the removal order) went beyond what was reasonably necessary to ensure that the land was used for residential purposes, we held that the Judge had power to make that order in the terms that he did and that they were appropriate in the absence of the parties co-operating in crafting a list of specific exemptions to the removal order on the basis that collectively the exemptions involve use of the land as residential. We deferred the final determination of the appeal to give to Mr Tavitian an opportunity to seek to engage in such a co-operative process with the Council.

3. The parties subsequently met at the land and negotiated with a view to agreeing on an alternative form of wording of the removal order. Under the supervision of a Judge of this Court, the parties largely agreed on the wording of an alternative removal order. The parties made written submissions on:

   1.four residual issues upon which they were unable to agree; and

   2.costs.

   Wording of removal order

4. The parties agreed that the date for compliance with the removal order (the compliance date) should be extended to a date three months after the final determination of this appeal.

5. Subject to specific additions or deletions which one or the other party contended should be made, the parties agreed that the removal order should be expressed in the following terms:

   2.By no later than the Compliance Date (and if completed earlier then continuing until the Compliance Date) the respondent, David Tavitian, must make good the breach of the Development Act found to exist, namely, use of the Land for the storage of scrap materials (including junk materials), by either:

   (a)   removing from the land; or

   (b)   storing wholly within an enclosed building all materials (including items, goods and vehicles) stored on the land except for:

   (i)     any materials already stored wholly within an enclosed building;

   (ii) three “wheelie bins” comprising one used for domestic rubbish, one used for recyclables, and one used for green waste;

   (iii)     two vehicles which are not road registered;

   (iv)     one registered 6’ x 4’ trailer; and

   (v)the following items as particularised in the Pictorial List of Items FDN 30 in Supreme Court action 1376 of 2012:

   (A)     item   3     one pallet hand truck as depicted;

   (B)     items 4      bench,
                    5      bench trolley, 
                    6      big unregistered trailer;

   (C)items
            8      four steel drums,
            9      four wheelie bins ,
            10      timber and wood as depicted, 
            11      concrete reinforcing mesh as depicted;

   (D)item     12     fencing materials as depicted including the wrought iron         gates;

   (E)items
            13      garden hoses as depicted,
            14      eighty 10-litre plastic tubs,
            15      mobile crane with block and tackle/winch,
            16      blue trolley as depicted, 
            17      three wheelbarrows;

   (F)item      18     tables and chairs, limited to three tables; no limit upon     chairs as depicted; and

   (G)items
            19      bricks and pavers as depicted,
            20      clothes hoist,
            24      gas barbecue with gas cylinders,       25    five bicycles and bicycle trailer as depicted. 

   3.The respondent, David Tavitian, as part of making good the said breach, must by the date 3 calendar months after the Compliance Date remove from the Land (or store wholly within an enclosed building) the wrought iron gates existing on the land existing on the land at 7 November 2014, unless by that date the gates have been installed on the land as functioning gates and any development approval required for such installation has been obtained.

6. The residual issues between the parties are as follows.

7. First, the Council contends that the references in paragraphs 2(b) and (i) and 3 to “enclosed buildings” in which materials are stored should be confined to enclosed buildings “existing upon the land as at the date of these orders”. This is because, the Council argues, the identification of the materials required or not required to be removed under the removal order involves a delicate balance, taking into account the sum total of all materials not required to be removed and being the result of a negotiated compromise between the parties. The Council argues that this balance could be upset by the future construction of additional buildings by Mr Tavitian. Mr Tavitian opposes the addition of the suggested words and argues that he has an ongoing legislative entitlement to store materials within buildings including buildings to be constructed in the future. We accept the Council’s contention. Unlike order 1 made by the Judge, the removal order is solely remedial and has a once only operation. It is essential that there be reasonable certainty as to the identity and quantity of the materials which must be removed as at the date on which the order is made.

8. Secondly, the Council contends that the description of the two vehicles the subject of paragraph 2(iii) should be “two ordinary domestic motor vehicles, bodies or shells which are not road registered”.  Mr Tavitian contends that the description should be “two unregistered vehicles not exceeding 3,000 kilograms each”. While the differences between these formulations are not likely to have a practical effect given that there are presently four vehicles on the land that would fall within either formulation, we adopt the formulation by the Council. It is preferable for practical reasons that the motor vehicles be defined by nature (“ordinary domestic”) rather than by weight; their registered status be defined in terms of road registration; and that the description encompass not only whole vehicles but also bodies or shells.

9. Thirdly, Mr Tavitian seeks to add as proposed order 4 a provision that “if any of the two unregistered vehicles [the subject of order 2(iii)] is removed, it can be replaced with the same number of unregistered vehicles not exceeding the permissible weight of the Development Regulations 2008”. This is opposed by the Council on the ground that the removal order does not have a future operation beyond the compliance date and the future position is governed by order 1. We accept the Council’s submission in this respect.

10. Fourthly, Mr Tavitian seeks two variations to order 1. He seeks the deletion of the words “or causing, suffering or permitting the use of” in the chapeau to the order. He seeks to insert the words “which exceeds that which is permissible in the residential zone” at the end of subparagraphs (a) and (b) to qualify order 1 which otherwise prohibits the collection or storage of “scrap or junk”. This is opposed by the Council on the ground that it is beyond the liberty granted by this Court when delivering its principal reasons for judgment and in any event on the merits. We accept the Council’s submission. Reference to “causing, suffering or permitting” is common in injunctive orders and was appropriately included in order 1. The proposed qualification to the “scrap or junk” referred to in order 1 would create uncertainty and a risk of unproductive future litigation.

11. The time for compliance with order 1 should be extended to three months from the date of these reasons for judgment and defined as “the compliance date” for the purposes of order 2.

12. We will make an order in terms representing the common ground between the parties and in accordance with these reasons.

    Costs of the appeal

13. The Council seeks an order that Mr Tavitian pay its costs of the appeal. Mr Tavitian contends that the appropriate order is that there be no order as to the costs of the appeal.

14. In substance, the Council was successful on the appeal. Prima facie, it is entitled to the costs of the appeal because costs normally follow the event. The Council was wholly successful on the principal issue argued on appeal, namely the land acquisition contention. In relation to the subsidiary issue of the width of order 2, this Court held that the Judge had power to make such an order and that it was appropriate to do so in the absence of co-operation between the parties agreeing on a list of specific items permitted to remain on the land. The mere fact that the parties subsequently negotiated an agreement and an alternative order is to be made is no reason to deprive the Council of the prima facie entitlement it would otherwise have to costs.

15. Mr Tavitian relies upon conduct by the Council before institution of the proceedings in the Environment, Resources and Development Court which he contends amounted to acquiescence in his use of the land. He also relies upon conduct by the Council during the proceedings at first instance in making claims not ultimately pursued and in not meeting to negotiate a compromise. Mr Tavitian chose to appeal to this Court against the judgment of the Environment, Resources and Development Court, on which he has essentially been unsuccessful, and the historical matters raised by Mr Tavitian are incapable of depriving the Council of its prima facie entitlement to costs in this Court.

16. The Council seeks specific orders that the costs of the appeal include the costs of counsel and the costs of preparation of Case Book Volume 2. These are matters to be determined by a Master on a costs adjudication, if necessary. Without binding the Master, we observe that it is usual to brief counsel to appear on appeals to this Court and we see no reason why the costs of preparation of Case Book Volume 2 should not be regarded as part of the costs of appeal. However, we decline to make any specific order on this issue. We simply order that the appellant pay the respondent’s costs of appeal.

    Costs at first instance             

17. The Judge ordered that Mr Tavitian pay the Council’s costs of the proceedings. Mr Tavitian had opposed an order for costs and contended that the appropriate order was that there be no order as to costs. Mr Tavitian submitted that the Council’s conduct before institution of the proceedings amounted to acquiescence in his use of the land, he was then forced to defend the proceedings because some demands by the Council were too wide, the Council abandoned a claim for exemplary damages and the Council refused meet to negotiate a compromise. The Council contends that the costs order at first instance should not be disturbed.

18. Mr Tavitian appeals against the Judge’s costs order essentially raising the same contentions that he put to the Judge at first instance. Costs are in the discretion of the Court and the discretion is not to be disturbed unless the Judge proceeded on a wrong principle, mistook the facts, took into account an irrelevant matter, failed to take into account a relevant matter or made a decision no reasonable judge could make. Mr Tavitian has not demonstrated vitiating error by the Judge in making the costs order.

19. The conduct by the Council before the institution of the proceedings was not of a nature as to disentitle the Council to an order for costs of the proceedings. The costs incurred by the Council in relation to relief not ultimately pursued or granted would have been relatively modest and in any event not such as to disentitle the Council to an order for costs.

20. Mr Tavitian contends that a letter he wrote to the Council dated 23 January 2012 made an offer that was unreasonably refused by the Council and consequently the Council should only have its costs until the date of the letter. The letter cannot be construed as making an offer. It rather set out Mr Tavitian’s position and intention to retain certain materials on the land which were “incidental to home activities” in the future. In any event, the letter was not sufficiently specific in identifying and quantifying materials to remain on the land that, if it had comprised an offer, the Council acted unreasonably in not accepting it.  

21. At the pre-trial conference in the Environment, Resources and Development Court, Mr Tavitian suggested a meeting at the land with the Council with a view to agreeing on materials to be removed or retained. The Council requested that Mr Tavitian prepare a list of specific materials proposed to be removed or retained. No further steps were taken by either party in this direction. The mere expression of a willingness to negotiate by a party who is ultimately unsuccessful in the proceedings will not usually amount to good reason to deprive a successful party of costs.  In the absence of a specific offer, it is difficult to conclude that a responding party acted unreasonably because it is difficult to predict what would have occurred if the parties had further negotiated.

22. Mr Tavitian contended before the Judge that the costs of a directions hearing on 20 March 2012 should be excluded from any costs order made in favour of the Council because the Council was late in making disclosure. Mr Tavitian has not demonstrated on appeal any vitiating error by the Judge in declining to make such an order.

23. We dismiss Mr Tavitian’s appeal against the Judge’s costs order.

    Conclusion

24. We vary the orders made by the Judge by:

    1.substituting “24 May 2015” for the date in order 1 and inserting thereafter “(the compliance date)”; and

    2.substituting the following orders for order 2:

    2.By no later than the Compliance Date (and if completed earlier then continuing until the Compliance Date) the respondent, David Tavitian, must make good the breach of the Development Act found to exist, namely, use of the Land for the storage of scrap materials (including junk materials), by either:

    (a)   removing from the land; or

    (b)   storing wholly within an enclosed building existing upon the land as at 24 February 2015 all materials (including items, goods and vehicles) stored on the land except for:

    (i)    any materials already stored wholly within an enclosed building existing on the land as at 24 February 2015;

    (ii)   three “wheelie bins” comprising one used for domestic rubbish, one used for recyclables, and one used for green waste;

    (iii)  two ordinary domestic motor vehicles, bodies or shells which are not road registered;

    (iv)  one registered 6’ x 4’ trailer; and

    (v)   the following items as particularised in the Pictorial List of Items FDN 30 in Supreme Court action 1376 of 2012:

    (A)  item      3     one pallet hand truck as depicted;

    (B)items
             4      bench,
             5      bench trolley, 
             6      big unregistered trailer;

    (C)items
             8      four 205 litre steel drums,
             9      four wheelie bins,
             10      timber and wood as depicted, 
             11      concrete reinforcing mesh as depicted;

    (D)item     12     fencing materials as depicted including the wrought iron gates;

    (E)items
             13      garden hoses as depicted,
             14      eighty 10-litre plastic tubs,
             15      mobile crane with block and tackle/winch,
             16      blue trolley as depicted, 
             17      three wheelbarrows;

    (F)item     18    tables and chairs, limited to three tables; no limit upon chairs as depicted; and

    (G)items
             19      bricks and pavers as depicted,
             20      clothes hoist,
             24      gas barbecue with gas cylinders,   25    five bicycles and bicycle trailer as depicted.
    
    

    2A.The respondent, David Tavitian, as part of making good the said breach, must by the date 3 calendar months after the Compliance Date remove from the Land (or store wholly within an enclosed building existing on the land as at 24 February 2015) the wrought iron gates existing on the land at 7 November 2014, unless by that date the gates have been installed on the land as functioning gates and any development approval required for such installation has been obtained.

25. We also order that the appellant pay the respondent’s costs of appeal.