Waverley Council v Bobolas (No 4)

[2019] NSWLEC 25

Land and Environment Court

New South Wales

Medium Neutral Citation:	Waverley Council v Bobolas (No 4) [2019] NSWLEC 25
Hearing dates:	8 March 2019
Date of orders:	08 March 2019
Decision date:	08 March 2019
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1) Order 2 made on 19 December 2018 to be varied by the insertion of “as agreed or assessed” to read “The Second and Third Respondents are to pay the Council’s costs of the notice of motion dated 11 December 2018 as agreed or assessed”.  (2) The Council’s costs incurred from the commencement of the hearing of the Respondents’ notice of motion dated 2 January 2019 at 12.15 pm on 8 March 2019, as agreed or assessed, are to be paid by the Second and Third Respondents.
Catchwords:	PRACTICE AND PROCEDURE – application of slip rule – no basis for change to final orders under Uniform Civil Procedure Rules 2005 r 36.16
Legislation Cited:	Uniform Civil Procedure Rules 2005 rr 36.15, 36.16, 36.17
Category:	Procedural and other rulings
Parties:	Waverley Council (Applicant) Mary Bobolas (First Respondent) Elena Bobolas (Second Respondent) Liana Bobolas (Third Respondent)
Representation:	COUNSEL: A Pickles and J Reid (Applicant) C Bolger (First Respondent) E Bobolas (Second Respondent) Liana Bobolas (Third Respondent)   SOLICITORS: Wilshire Webb (Applicant) N/A (Respondents)
File Number(s):	18/50888

ex tempore Judgment

1. By notice of motion dated 2 January 2019 the Second and Third Respondents seek orders varying a costs order made by me on 19 December 2018. I made the order at the same time as dismissing their notice of motion filed 11 December 2018. I heard that notice of motion on 14 December 2018.

2. An affidavit sworn 2 January 2019 by Ms Liana Bobolas firstly stated that I erred in making a costs order in favour of the Council. Secondly, I erred in making a costs order without the words “as agreed or assessed”. Thirdly, I erred in allowing the Council time during the hearing of the Notice of Motion on 14 December 2018 to write and rely on an affidavit of Mr Schilt a council officer. This was procedurally unfair. Fourthly, if in the alternative a costs order was correctly made against the Respondents I should have restricted costs to that of a junior barrister. The notice of motion was not complex and therefore the presence of a senior counsel, junior counsel and solicitor was not necessary. Fifthly, the Council engaged in disentitling conduct in that they did not inform the Respondents that they would not be available until 18 January 2019 to perform the relevant clean-up work. Further the Council began and/or continued the proceedings with the intention of selling the Respondents’ property, incurring costs for no purpose. Additionally the Council sought to sell the Respondents’ property during the time allowed for the clean-up works to be done by the Respondents. This prevented the Respondents from completing these works since funds had to be raised. Sixthly, significant submissions were not considered by the Court being a facsimile sent by the Second and Third Respondents on 19 December 2019.

3. The costs order made on 19 December 2018 stated that the Second and Third Respondents were to pay the Council’s costs of the notice of motion dated 11 December 2018. I made that order because the Respondents were unsuccessful in obtaining an extension of time of earlier orders made by me concerning the removal of waste material from the premises in Waverley within a specified timeframe.

4. The Respondents seek four variations of the costs order:

1. that the costs be “as agreed or assessed”;

2. be limited to the payment of a junior barrister only;

3. the costs for the preparation of an affidavit of Mr Schilt council officer on 19 December 2019 in the amount of two hours should not be paid under the costs order; and

4. in the alternative to the above a different costs order be made in place of Order 2 that each party pay its own costs.

Uniform Civil Procedure Rules 2005

5. Relevant rules of the Uniform Civil Procedure Rules 2005 (UCPR) provide:

Part 36 Judgments and orders

…

Division 4 Setting aside and variation of judgments

36.15 General power to set aside judgment or order (cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3)

(1)   A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2)   A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

36.16 Further power to set aside or vary judgment or order (cf SCR Part 40, rule 9)

(1)   The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(2)   The court may set aside or vary a judgment or order after it has been entered if:

(a)   it is a default judgment (other than a default judgment given in open court), or

(b)   it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

(c)   in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.

(3)   In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it:

(a)   determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or

(b)   dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.

(3A)   If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

(3B)   Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.

(3C)   Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).

(4)   Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.

36.17 Correction of judgment or order (“slip rule”) (cf SCR Part 20, rule 10; DCR Part 17, rule 10; LCR Part 16, rule 10)

If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.

6. The issue arises given that final orders have been made and entered whether any of these changes should be made under r 36.17 the “slip rule” provision, r 36.15 “general power to set aside a judgment” or r 36.16 “further power to set aside or vary judgment or order”.

7. Arguably the first variation sought “as agreed or assessed” can be made under the slip rule although it is unnecessary as, contrary to the Respondents’ submission, my order has essentially the same effect as if the words were included. Order 2 as it stands permits the payment of costs on the ordinary basis if assessed, and an order does not need to explicitly state that. Parties can always negotiate about costs. Strictly speaking it is unnecessary to make the change but I consider the amendment can be made under the slip rule and will do so. The Council agrees the change can be made under the slip rule although considers it to be unnecessary.

8. The ability of the Court to set aside final orders under r 36.15 is highly constrained to for example cases of fraud, if a judgment has been entered irregularly such as contrary to a material requirement in the rules, or against good faith. None of the matters referred to by the Respondents justify any of the other variations of order sought under this rule.

9. The Respondents were not in court when judgment was delivered and orders were made on 19 December 2019. They attended my chambers later in the day and were provided with the judgment. They were present for the hearing on 14 December 2019. It appears that r 36.16(2)(b) can apply as the notice of motion before me was filed on 2 January 2019 and complies with r 36.16(3A).

10. In relation to the second variation sought, no basis has been provided for varying the order to state that only those costs of a junior barrister be paid. I would not describe the hearing of the notice of motion on 14 December 2019 as straightforward. That I have made such an order in an earlier judgment does not mean I should have done so on this occasion.

11. In relation to the third variation sought, there was no so-called disentitling conduct by the Council in having prepared and relying on Mr Schilt’s affidavit during the 14 December 2018 hearing. The affidavit was necessary to respond to additional material the Respondents sought to rely on on that day about which there was no notice given to the Council. I asked the Respondents if they wished to have the matter proceed that day with Mr Schilt giving oral evidence or preparing a short affidavit or adjourning their motion to the following week to enable Mr Schilt to swear an affidavit and give them further time. The Respondents chose to proceed with the hearing on 14 December 2018 and Mr Schilt swore the affidavit so that his evidence was in writing for the benefit of the Respondents. No basis for limiting the costs order in this manner is demonstrated.

12. Turning to the fourth variation sought, that the Council may have taken action in relation to selling the Respondents’ house is irrelevant to my consideration on this notice of motion.

13. The Respondents were unsuccessful on their notice of motion filed 11 December 2018. The Council was under no obligation to tell them they would not be undertaking any clean up before 18 January 2019.

14. That a facsimile was sent to the Court the day of judgment, 19 December 2018, by the Second and Third Respondents, without leave of the Court and with no notice it was to be sent and which I did not read before giving judgment is not a circumstance justifying the variation of orders.

15. No basis to set aside the costs order and substitute an order that each party pay their own costs is demonstrated.

16. The Respondents have been largely unsuccessful on their motion. Costs should follow the event.

Orders

17. The Court makes the following orders:

1. Order 2 made on 19 December 2018 to be varied by the insertion of “as agreed or assessed” to read “The Second and Third Respondents are to pay the Council’s costs of the notice of motion dated 11 December 2018 as agreed or assessed”.

2. The Council’s costs incurred from the commencement of the hearing of the Respondents’ notice of motion dated 2 January 2019 at 12.15 pm on 8 March 2019, as agreed or assessed, are to be paid by the Second and Third Respondents.

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Decision last updated: 14 March 2019