Waverley Council v Barukh & Anor

[2023] NSWLEC 15

Land and Environment Court

New South Wales

Medium Neutral Citation:

Waverley Council v Barukh and Anor [2023] NSWLEC 15

Hearing dates:

03 November 2022

Date of orders:

28 February 2023

Decision date:

28 February 2023

Jurisdiction:

Class 4

Before:

Robson J

Decision:

See orders at [56]

Catchwords:

COSTS — Application by second respondent for costs in Class 4 proceedings — Second respondent joined to the proceedings by applicant — Where proceedings resolved without a determination on the merits — Where applicant and second respondent achieved in substance the desired result — Where fair and reasonable to make a costs order — Partial costs order made

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Environmental Planning and Assessment Act 1979 (NSW), Pt 1 of Sch 5, s 9.34

Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.2, 42.19, 42.20

Cases Cited:

Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219

Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

Nadilo v Eagleton [2021] NSWCA 232; (2021) 250 LGERA 89

Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424

Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Sze Tu v Lowe (No 2) [2015] NSWCA 91

Category:

Costs

Parties:

Waverley Council (Applicant)
Moshe Chai Barukh (First Respondent)
Maria Blajic (Second Respondent)

Representation:

Counsel:
L F Sims (Applicant)
R O’Gorman-Hughes (First Respondent)
N M Eastman (Second Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Applicant)
Project Lawyers (First Respondent)
Bartier Perry Lawyers (Second Respondent)

File Number(s):

2021/00234601

Publication restriction:

Nil

Judgment

1. Before the Court is a claim by Maria Blajic, the second respondent in Class 4 civil enforcement proceedings commenced by Waverley Council (‘Council’) for her costs of these proceedings which have effectively been settled between Council and Moshe Chai Barukh, the first respondent.

2. For the reasons that follow, I am satisfied that it is appropriate that an order be made that a proportion of Ms Blajic’s costs be paid by Mr Barukh.

Background

3. Mr Barukh is the owner of a property at 70 Edward Street, Bondi. Mr Barukh’s property shares a common boundary with a property at 2 Moore Street, Bondi, owned by Ms Blajic. The entire rear boundary of 70 Edward Street adjoins the side boundary of 2 Moore Street. Mr Barukh’s property also adjoins a Council-owned road and adjacent footpath. At all material times there was a retaining wall situated on, or adjacent to, the shared boundary between Mr Barukh’s property and Ms Blajic’s property.

4. On 22 March 2021, the retaining wall on the boundary between Mr Barukh’s property and Ms Blajic’s property failed and collapsed into 70 Edward Street resulting in part of the retained land on Ms Blajic’s property, which is situated at a higher level, falling down into Mr Barukh’s property. The collapse also resulted in exposure of stormwater infrastructure on Ms Blajic’s property. The retaining wall situated on the shared boundary between Mr Barukh’s property and Council’s land was also damaged but did not collapse into Mr Barukh’s property.

5. On 1 April 2021, Council issued Mr Barukh with an order pursuant to s 9.34 and Pt 1 of Sch 5 of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) (‘emergency order’).

6. The emergency order was in the following terms:

“…

Development Control Order:

Pursuant to section 9.34 and Schedule 5, Part 1 of the Environmental Planning and Assessment Act 1979, Waverley Council gives you as owner of the above residential premises a development control order in terms of Order No. 5 set out in Schedule 5, Part 1 of the Act.

Premises:

70 Edward Street, BONDI NSW 2026

Circumstances:

Emergency works order required for the stabilisation of rear southern and eastern boundaries at 70 Edward Street Bondi due to the collapsed retaining wall on the southern boundary and the structurally compromised retaining wall on the western boundary.

Terms of the Development Control Order:

1.   Rear southern and western boundaries at 70 Edward Street Bondi are to be stabilised in accordance with Structural Engineers detail Drawing No. 2114-1B dated 25/3/2021 and amended 31/3/2021 by Peter Carters & Associates P/L (Consulting Engineers).(attached)

2.   It should be noted that soldier piers and whalers are to be located within the boundaries of 70 Edward Street Bondi.

3.   A suitably qualified structural engineer is to supervise the approved works (referred to in item 1 above) and provide a structural engineer’s certificate for the adequacy of stabilisation works that have been completed in accordance with approved plan Dwg No. 2114-1b dated 25/3/21 and amended 31/3/2021 by Peter Carters & Associates P/L (Consulting Engineers).

Reasons for Council issuing the Development Control Order:

A recent inspection of the subject premises identified that circumstances exist that the collapsed retaining wall bounding the properties of 70 Edward Street and 2 Moore Street Bondi the impaired structural adequacy of the western retaining wall within 70 Edward Street Bondi are a danger to the public and prejudicial to the occupants, persons or property in the neighbourhood.

Period for compliance:

The period for compliance for this Development Control Order “forthwith” from the time of service of the development control order.

Right of appeal against the Development Control Order:

Pursuant to s 8.18 of the Act a person who is given a development control order may appeal to the Land and Environment Court of NSW against the order within 28 days after the development control order is given to the person.

…”

7. By summons filed 17 August 2021, Council commenced these Class 4 civil enforcement proceedings naming Mr Barukh as the sole respondent, and seeking declaratory relief that Mr Barukh had failed to comply with the emergency order, and an order that Mr Barukh engage a licensed builder to carry out “temporary works” to stabilise the land on 70 Edward Street in accordance with plans issued by Peter Carters & Associates Pty Ltd, consulting engineers, at Mr Barukh’s expense. The works the subject of the summons were effectively the works that were sought in pars (1), (2) and (3) under the heading “Terms of the Development Control Order” outlined in the emergency order above.

8. The summons also sought an order that Mr Barukh “re-instate the retaining walls at rear southern and western boundaries…” within four weeks.

9. Following commencement of proceedings, Council and Mr Barukh participated in mediation on 19, 23 and 24 August and 1 September 2021.

10. On 2 September 2021, Council filed a notice of motion to join Ms Blajic to the proceedings and on 3 September 2021, Ms Blajic was joined as the second respondent. Subsequent to the order joining Ms Blajic as the second respondent, the parties were granted leave to file an amended summons to include Ms Blajic as the second respondent. The amended summons was filed on 3 September 2021. It appears common ground (and as noted later in this judgment, to the extent necessary, I find) that Ms Blajic was a necessary party to the proceedings as the works required to remedy the breaches the subject of the original summons could not be carried out without impacting on her property at 2 Moore Street.

11. Following the joinder of Ms Blajic to the proceedings, the parties re-commenced mediation on 15 and 28 October 2021 and 15 November 2021, when the mediation was terminated. Mr Barukh was then directed to prepare a revised retaining wall design which was to be provided to Council and Ms Blajic by 18 November 2021.

12. On 16 November 2021, Ms Blajic filed a notice of motion seeking orders that Mr Barukh carry out works in relation to damage to stormwater drainage infrastructure on her property (styled “Stage 1, Restoration of stormwater drainage infrastructure”) at the same time as the reinstatement works required in Council’s amended summons. Prior to that date, on 12 November 2021, Ms Blajic’s solicitors provided to Mr Barukh’s solicitors a draft notice of motion that had sought more extensive works than were later sought in the notice of motion filed 16 November 2021.

13. On 26 November 2021, the Court made orders by consent for the reinstatement of the retaining wall and associated works on the shared boundary between Mr Barukh’s property and Ms Blajic’s property, and required that specified remedial works were to be carried out on Ms Blajic’s property (‘Consent Orders’).

14. The terms of the Consent Orders were as follows:

“1   Order that the First Respondent engage a licensed builder and have constructed the retaining walls at rear southern and western boundaries on the land at 70 Edward Street, Bondi in accordance with the following:

a.   Engineering Drawings (Rev E) prepared by Ross Engineering dated 4 November 2021, annexed hereto and marked “Annexure A”, and

b.   Design Report (No. 21-9719-R1-E) prepared by Ross Engineering dated 18 November 2021, annexed hereto and marked “Annexure B”,

As soon as possible and no later than eight (8) weeks of these orders.

2.   At the same time as the carrying out of the works required by order 1 above, the First Respondent is to engage a licensed builder and have carried out the Stage 1, Restoration of stormwater drainage infrastructure works on the Second Respondent’s property at 2 Moore Street, Bondi as set out in Annexure “C”.

3.   The Court reserves all other claims including costs of the proceedings.”

15. Order 1 of the Consent Orders related to the reinstatement of the retaining wall and associated works on the shared boundary between Mr Barukh’s property and Ms Blajic’s property and Order 2 required that specified remedial works were to be carried out on Ms Blajic’s property.

16. On 26 November 2021, Council filed a further amended summons effectively amending the amended summons to reflect the agreement that had been reached and the Court granted Council leave to rely on the further amended summons and made orders in accordance with the Consent Orders agreed to by the parties.

17. The further amended summons sought the following relief:

“…

Final Relief

4.   A declaration that the First Respondent has failed to comply with the Order issued by the Applicant to the First Respondent under s9.34 and Schedule 5, Part 1 of the Environmental Planning and Assessment Act 1979 (“the Act”) dated 1 April 2021 (“the Order”) in respect of the land at 70 Edward Street, Bondi (“the Land”).

4A. A declaration that the First Respondent has carried development on the Land without development consent where such consent was required, in contravention of the Act.

…

7.   Order that the First Respondent engage a licensed builder to construct re-instate the retaining walls at rear southern and western boundaries at the Land in accordance with the Engineering Drawings (Rev E) prepared by Ross Engineering dated 4 November 2021 and the Design Report (No. 21-9719-R1-E) prepared by Ross Engineering dated 18 November 2021 within four (4) weeks of these orders (or such other reasonable time).

…”

18. The further amended summons deleted the prayer for relief that sought an order which reflected the works required in the emergency order, being the works in accordance with plans issued by Peter Carters & Associates Pty Ltd (previously prayer 5), and substituted an order (new prayer 7) that reflected the agreement that had been reached between the parties encapsulated in Order 1 of the Consent Orders outlined above.

19. On 3 December 2021, Ms Blajic filed a cross-summons seeking orders in the nature of remedial works, damages, and costs against Mr Barukh.

20. On 6 December 2021, Mr Barukh filed a cross-summons seeking orders that Ms Blajic contribute to the costs of the reinstatement of the retaining wall, and costs.

21. On 18 February 2022, Mr Barukh and Ms Blajic confirmed that they would not be pressing for the relief sought under their respective cross-summonses filed in these proceedings.

22. On 18 February 2022, the time for completing the works the subject of the Consent Orders was extended to 11 March 2022 and on 8 March 2022, Mr Barukh provided Council and Ms Blajic with a certificate of structural adequacy reflecting the completion of works required by the Consent Orders.

23. On 24 October 2022, Council and Mr Barukh settled the remaining issues as between themselves, and Council no longer pressed the remaining relief as against Mr Barukh.

Evidence

24. The Court received a statement of agreed facts filed 2 November 2022. Mr Barukh read parts of his affidavit affirmed 20 September 2022 and parts of the affidavit of his solicitor, Mark Hanna, affirmed 3 November 2022. Each of the parties provided written and made oral submissions.

Ms Blajic’s position

25. Ms Blajic seeks an order that Mr Barukh pays the costs of these proceedings on the basis that Mr Barukh has effectively capitulated to the relief sought by Council against him. In the alternative, Ms Blajic seeks an order that Council pays her costs incurred in these proceedings because, first, it was unreasonable for Council, having joined Ms Blajic as a necessary party, to bring these proceedings to an end without including any consideration of her costs; and second, in the alternative, on the basis that she should not have been joined to the proceedings at all.

26. Ms Blajic submits that the proceedings arose out of building works being carried out by Mr Barukh at 70 Edward Street leading to the emergency order issued by Council and when the further amended summons was filed on 26 November 2021 reflecting the orders which had been made by consent (including an order that remedial works be carried out on Ms Blajic’s property), the substantive relief sought by Council in the proceedings had been effected. Despite this, Council chose not to discontinue the proceedings in circumstances where, if it had discontinued, there would be a presumption that it would pay the costs of each of the respondents. Therefore, in the circumstances of Mr Barukh’s effective capitulation making further prosecution of litigation unnecessary, an award of costs in favour of Ms Blajic is justified.

27. In the alternative, Ms Blajic submits that in circumstances where Council has abandoned the proceedings (being a “constructive discontinuance”) effectively thereby avoiding the cost presumption in r 42.20 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’), Council’s conduct was unreasonable in that it failed properly to negotiate with Ms Blajic in relation to any residual costs order. In any event, costs are compensatory, and this should be a critical factor in the exercise of the Court’s discretion.

28. Ms Blajic also submits that she has not acted unreasonably at any point during the conduct of these proceedings.

Mr Barukh’s position

29. Mr Barukh’s primary position is that the Court could not (and should not) determine the matter upon the basis that any conduct on behalf of Mr Barukh caused the collapse of the retaining wall and that, in the circumstances, it is not appropriate for the Court to run a hypothetical case in any event. Further, to the extent that it is suggested by Ms Blajic that there has been a “surrender”, Mr Barukh submits that the original summons required works to be carried out in accordance with a particular engineer’s report (Peter Carters & Associates Pty Ltd), which required the installation of piles. Thereafter, following lengthy mediation, an agreement was reached that works would be carried out in accordance with different engineering plans (prepared by Ross Engineering) which did not require the installation of piles. As such, Mr Barukh submits there was no surrender or capitulation.

30. Mr Barukh submits that, in circumstances where the matter involved complex issues concerning methodology for reconstruction of a retaining wall and the fact that Mr Barukh had acted promptly, there was nothing unreasonable in his conduct, particularly in deferring any agreement as to what works would be carried out until there had been an agreed engineering solution which was acceptable to all the parties. In those circumstances, Mr Barukh submits that Ms Blajic’s application for costs should be dismissed, and she should pay his costs of the application.

31. Mr Barukh also submits that the notice of motion filed by Ms Blajic on 16 November 2021 required further works which ultimately Mr Barukh agreed to in the Consent Orders which adopted specified remedial works sought in Ms Blajic’s motion. Therefore, the Consent Orders did not amount to a surrender particularly in circumstances where it could be said that Mr Barukh enjoyed some success in that the works did not involve the installation of piles.

32. Mr Barukh also submits that, apart from the above, he was not given appropriate notice of Ms Blajic’s claim such that although a draft notice of motion was provided to Mr Barukh’s solicitors on 12 November 2021 (before her motion was filed on 16 November 2021), it differed in certain respects from that which was ultimately sought and, in any event, the three parties came to an agreement on the method for reconstruction of the retaining wall, and in those circumstances, the agreement ultimately reached does not trigger an entitlement to costs.

Council’s position

33. In circumstances where Council was successful in obtaining the orders it sought against Mr Barukh, and where Council and Mr Barukh have resolved costs between themselves, Council submits that the usual rule applicable to Class 4 proceedings, that costs follow the event, should be followed. Council submits that Ms Blajic’s notice of motion sought relief and costs against Mr Barukh and did not seek any relief against Council. After the Consent Orders were made on 26 November 2021, the only issues remaining between the parties were Council’s claims for declaratory relief and costs orders against Mr Barukh, Mr Barukh’s cross-summons seeking relief only against Ms Blajic, and Ms Blajic’s cross-summons seeking relief only against Mr Barukh (noting that both cross-summonses are not pressed).

34. In the above circumstances, Council submits there was no reason for Ms Blajic to incur the costs of these proceedings after the date of the agreement between the parties and, to the extent that it may be submitted otherwise, Council’s successful application to have Ms Blajic joined to the proceedings was reasonable and appropriate on the basis that on any view, she was a necessary party as the works involved in relation to the retaining wall required works to be undertaken on her property.

35. Council submits that as a consequence of the agreement between it and Mr Barukh, Council did not press for any further relief and in those circumstances, the usual order for the disposal of proceedings is that the proceedings (being the further amended summons) are otherwise dismissed. In the circumstances, by reference to rr 42.19 and 42.20 of the UCPR (in relation to costs orders in circumstances where proceedings are discontinued and/or dismissed), Council submits that no claim remained against Ms Blajic such that no claim against Ms Blajic was discontinued or dismissed and, on that basis, Ms Blajic has no entitlement to costs of any discontinued or dismissed claim.

Consideration

36. The Court has a broad discretion as to costs pursuant to s 98 of the Civil Procedure Act 2005 (NSW) (‘CP Act’) and the UCPR to determine by whom, to whom, and to what extent costs are to be paid. This discretion is to be liberally construed and its exercise restricted only by limitations and conditions that are clearly expressed: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [21]; Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 543.

36. Section 98(1) of the CP Act provides:

(1)   Subject to rules of court and to this or any other Act—

(a)   costs are in the discretion of the court, and

(b)   the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c)   the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

38. Ordinarily, costs will follow the event and be payable on the ordinary basis unless it appears to the Court that other orders should be made: UCPR, rr 42.1, 42.2. The “event” usually refers to the event of the claim and may be understood as referring to the practical result of a particular claim: Sze Tu v Lowe (No 2) [2015] NSWCA 91 at [39]; Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15].

39. While a successful party is usually entitled to a costs order, when there has been no hearing on the merits, as in the present circumstance, the Court is necessarily deprived of the factor that usually determines whether or how it will make an order for costs.

40. Although the question of discontinuance may not be determinative where Council has chosen not to discontinue the proceedings, in circumstances where, first, Ms Blajic submits that Council’s conduct amounts to a “constructive discontinuance” and/or there has been a capitulation or surrender by Mr Barukh; and second, Council submits that as between Council (as applicant) and Ms Blajic (as second respondent), no claim has been either dismissed or discontinued, questions of nicety arise.

41. Rule 42.19 of the UCPR governs the costs discretion in the case of discontinued proceedings and, simply stated, an order for costs under r 42.19 of the UCPR is to be made unless there is a discretionary reason to order otherwise. This means there is ordinarily an onus on the discontinuing party to convince the Court that it should not be liable for the payment of the other party’s costs of the proceedings.

42. However, this is not necessarily the case in circumstances of a supervening or extra-curial event which results in the removal of the subject matter of the dispute such that no issue remains except for that of costs.

43. In summary, the absence of a hearing on the merits of the proceedings will usually mean that the Court will make no order as to costs, subject to a qualification that even where parties have acted reasonably, costs may be awarded if the Court is satisfied that one party “was almost certain to have succeeded if the matter had been fully tried”, adopting the well-known comments of McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625; [1997] HCA 6 (‘Ex parte Lai Qin’); Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 at [2] (per Basten JA).

44. Further, the circumstances leading to the discontinuance (constructive or otherwise) or abandonment of the proceedings and the conduct of the parties are relevant in the exercise of the Court’s discretion: Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424 at [20]-[34]. The position may be different where a respondent simply capitulates: Nadilo v Eagleton [2021] NSWCA 232; (2021) 250 LGERA 89 (‘Nadilo’) at [12].

45. In Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441 at [80], Preston CJ of LEC made the following comments which I respectfully adopt:

“The principles that emerge from these cases are that in a civil enforcement or judicial review case where there has been no hearing on the merits:

(a) where one party effectively surrenders to the other party by:

(i) discontinuing without the consent of the other party; or

(ii) giving undertakings to the Court or submitting to the Court making orders against the party substantially in the terms or to the effect claimed by the other party;

the proper exercise of the costs discretion will ordinarily be to make the usual order as to costs, unless there is disentitling conduct on the part of the other party; and

(b) where some supervening event or settlement so removes or modifies the subject of the dispute that no issue remains except that of costs, the proper exercise of the costs discretion will ordinarily be to make no order as to costs unless:

(i) one of the parties has acted so unreasonably that the other party should obtain the costs of the action; or

(ii) even if both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried so that the party should obtain the costs of the action.”

46. I am conscious that the power to award costs is an important aspect of rendering justice between litigants (Nadilo at [6] per Brereton JA) and that the rules and principles that are to be applied reflect the notion that justice to a successful party is not achieved if it comes at the price of being substantially out-of-pocket so that the party who is responsible for litigation should bear the costs. While the rationale is usually that the formal disposition of the proceedings by dismissal truly effects “the event”, this does not hold true where a discontinuance or dismissal is consequent upon an applicant having obtained practical success, thereby rendering the further prosecution pointless. Put simply, where some supervening event, for example in the present case the effective settlement, so removes or modifies the subject of the dispute (as opposed to a party effectively surrendering to the other), there is difficulty in discerning a clear reason why one party, rather than the other, should bear the costs.

47. Leaving aside the obvious caution and principle in Ex parte Lai Qin which requires that I determine the question of costs by assessing whether “…both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continue to be reasonable until the litigation [came to an end]”, the present matter is made more complicated by there being a third party.

48. While the question of unreasonableness in relation to a party’s conduct needs to be viewed practically and substantively and not by focusing on the precise terms of the summons (Nadilo at [94] per Preston CJ of LEC), I am unable to conclude that either Council or Mr Barukh conducted themselves unreasonably and, although I do not consider that the matter is determined simply by whether the conduct involved capitulation or surrender (although as I find later in this judgment, there was a sufficient element of capitulation), I find it is appropriate to also consider the substance of the outcome that Ms Blajic (and Council) has achieved.

49. Adopting the approach of Preston CJ of LEC in Nadilo at [85], albeit in circumstances concerning a primary applicant and a primary respondent, that a party’s success should not be evaluated by close comparison of the precise terms of the orders made by the Court by consent of the parties and the prayers for relief in the summons, but rather by looking to the substance of the outcomes sought and obtained, I consider that it would be unjust if Ms Blajic was caused to incur costs in being brought into proceedings and then participating in settlement in circumstances where if the matter had proceeded to hearing, it is almost certain that Council, as applicant (or indeed Ms Blajic by way of her notice of motion), would have enjoyed success which would have been reflected in orders not dissimilar to the Consent Orders.

50. The present conundrum arises in circumstances where Ms Blajic has been brought into the proceedings through no fault of her own, has incurred costs in the conduct of the matter, and has not conducted herself unreasonably on the matters presently before the Court (although I have some concern that the draft notice of motion provided to Mr Barukh prior to 16 November 2021 made a more extravagant claim for relief), and where there has been settlement which effectively gives Council, as applicant, the substantive relief it otherwise sought and also addresses concerns which resided with Ms Blajic.

51. When the relief sought in the further amended summons is compared to the Consent Orders, it is clear (by Order 2) that Mr Barukh was to carry out remedial works in relation to “[r]estoration of stormwater drainage infrastructure” on Ms Blajic’s property. As such, it is clear that she has enjoyed some success in the resolution of these proceedings. Doing the best I can, taking into account the fact that Ms Blajic was joined to the proceedings as the result of the conduct of others (that is, that her conduct did not in any way initiate the proceedings) and my finding (to the extent that there may have been an argument to the contrary) that she was a necessary party, it is clear that although the primary dispute was between Council and Mr Barukh, there were concerns in relation to works that were required to be done on her property as a result of circumstances which, on the evidence before the Court, were related to matters which, at least, caused, first, Council to issue the emergency order (pursuant to s 9.34 and Pt 1 of Sch 5 of the EPA Act dated 1 April 2021); and thereafter, seek relief (at least in relation to the original summons filed 17 August 2021) in relation to non-compliance with that order.

52. The practical and substantive effect of the Consent Orders that were ultimately agreed between the parties provided, on any reasonable view, success to Council (and, it would appear, success of Ms Blajic’s notice of motion filed 16 November 2021), even though as Mr Barukh submits, the Consent Orders did not precisely reflect the works that were otherwise sought in the original summons (or to the extent relevant, in the draft notice of motion prepared on behalf of Ms Blajic). Moreover, I consider that the Consent Orders reflect a sufficient element of capitulation by Mr Barukh and on that ground, I find that the interests of justice require that Ms Blajic receive a proportion of her costs. Although I have a concern in relation to the conduct of the cross-summons (and as noted above, both Ms Blajic and Mr Barukh confirmed to the Court (at least on 18 February 2022) that they would not be “pressing” for the relief sought under their respective cross-summonses), I see a practical difficulty in determining (or assessing) costs that may have been involved with those cross-summonses.

53. In summary, I find that the interests of justice require that, to the extent that Ms Blajic has enjoyed some success in these proceedings in circumstances where she was brought into the proceedings and necessarily incurred costs in the conduct up until the settlement thereof, I consider it appropriate that she receive one half of her costs of these proceedings up until the time of the entry of the Consent Orders and that Mr Barukh should pay these costs.

54. Although submissions were made on Ms Blajic’s behalf that Council’s conduct, in entering a settlement of the matter without consideration of Ms Blajic’s costs, was indicative of unreasonable (and therefore disentitling) conduct in relation to a claim for costs, and while this is a matter of some concern as noted above, I am not satisfied that I have sufficient evidence to make this finding. Despite this, Council was the moving party and also the party who joined Ms Blajic to the proceedings and apparently settled its claims against Mr Barukh without consideration of Ms Blajic’s costs position. As I have concerns as to Council’s conduct in the further settlement of these proceedings (as submitted by Ms Blajic), I consider that, taking into account the above matters, the appropriate order is that there should be no order as to Council’s costs of this costs application.

55. In all of the circumstances, I find that Ms Blajic should receive one half of her costs of these proceedings up until the time of the entry of the Consent Orders on 26 November 2021 which are to be paid by Mr Barukh and although Ms Blajic has enjoyed partial success in this costs application, that there should be no order as to the costs of this costs application with the intention that each party bear their own costs.

Orders

56. The Court makes the following orders:

1. The further amended summons is dismissed.

2. Moshe Chai Barukh, the first respondent, is to pay one half of the costs of Maria Blajic, the second respondent, incurred in these proceedings up until 26 November 2021.

3. There be no order as to costs of this costs application.

**********

Decision last updated: 28 February 2023