Waverley Council v Refkin Pty Ltd
[2000] NSWLEC 124
•06/19/2000
Land and Environment Court
of New South Wales
CITATION: Waverley Council v Refkin Pty Ltd [2000] NSWLEC 124 PARTIES: APPLICANT:
RESPONDENT:
Waverley Council
Refkin Pty LtdFILE NUMBER(S): 40042A of 2000 CORAM: Talbot J KEY ISSUES: Costs :- Notice of Discontinuance filed - indemnity basis LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 104A
Land and Environment Court Act 1979 s 71
Land and Environment Court Rules 1996 Pt 16
Supreme Court Rules 1970 Pt 52A r 37CASES CITED: Degmam Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354;
Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Ors (1988) 81 ALR 397;
Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning and Anor [2000] NSWLEC 20DATES OF HEARING: 16/06/2000 DATE OF JUDGMENT:
06/19/2000LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
Mr G B Newport (Barrister)
SOLICITORS:
McMahon and Associates
Mr V R Gray (Barrister)
SOLICITORS:
Gye Associates
JUDGMENT:
IN THE LAND AND Matter No. 40042A of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 19 June, 2000
Respondent
1. The applicant council commenced these proceedings claiming relief in the form of a declaration that a condition of development consent issued in respect of premises 120-128 Macpherson Street, Bronte is valid and an order that the respondent cause the cessation of the use and occupation of a lot in a strata plan registered in respect of those premises until the condition of consent is complied with.
2. A Notice of Discontinuance has been filed.
4. The parties agree that Young J faithfully set out the condition as follows:-3. The class 4 proceedings were commenced on the same day as Young J delivered a judgment in the equity division of the Supreme Court where the council had sued for a Mareva injunction to prevent the respondent, a builder, selling the last unit in the development that could meet the condition of the consent.
- (2) That a 1 x 1 bedroom unit is to be transferred to Council in perpetuity within two months of the Strata Plan being registered. This unit is to be managed by a local community group to provide permanent and safe housing in accordance with Council’s Affordable Housing Program.
5. The Court has been informed that the condition was imposed on the development consent when granted by the Court on appeal in class 1 proceedings without objection by the applicant for development consent.
6. The development consent was granted in favour of an individual who is not a party to these proceedings and was not a party to the proceedings in the Supreme Court. The respondent applied for and was granted a building approval which did not reiterate the abovementioned condition.
7. The condition was directed to a unit designated for residential use.
8. The lot in respect of which the council claimed an order in these proceedings is now a lot in a registered strata plan which is designated for commercial use as a shop. Counsel appearing for the council in the Supreme Court conceded that the jurisdiction of that Court had been curtailed under s 71 of the Land and Environment Court Act 1979 and accordingly, Young J recognised that the suit must be dismissed. He nevertheless commented that he had not been persuaded there was sufficient case for a Mareva injunction which the council was seeking by way of interlocutory relief.
9. The council, having brought the case in the Supreme Court, but then (as Young J found) faced with difficulty, raised the technical submissions which prevented the hearing from continuing. Accordingly, the judge awarded costs on the indemnity basis.
10. No explanation is given to this Court as a reason for the filing of the Notice of Discontinuance.
11. The respondent seeks an order for costs on an indemnity basis. The council does not oppose an order for costs but resists the award of costs on the indemnity basis.
12. Mr Gray originally submitted on behalf of the respondent that in substance these are commercial proceedings pursuant to which the council is claiming damages. Ultimately he conceded that the submission could not be supported in the light of the relief actually claimed in the class 4 application.
13. The relief sought in this Court is distinct from the relief which the council claimed under the summons filed in the equity division of the Supreme Court. Ultimately that distinction may not be material to the determination of the costs question in these proceedings.
14. There is no dispute that condition 2, set out above, has not been complied with. Although Young J made reference to the decision of Cowdroy J on 18 February 2000 in Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning and Anor [2000] NSWLEC 20 it is not readily apparent how the issues decided in that matter have any bearing on the present case.
15. Prima facie the council was entitled to seek relief by way of the declaration set out in the class 4 application, although a notice published pursuant to s 104A of the Environmental Planning and Assessment Act 1979 may have had some impact on the outcome. However, the proceedings were to seek a declaration of validity rather than a challenge to the legal effect of the condition. Mr Newport submits that in that respect the council had a reasonable prospect of success. He nevertheless recognises that the order sought was in respect of a lot in the strata plan upon which the condition had no bearing and accordingly was unrelated to the effect of condition 2.
17. Mr Gray refers to the following observation made by Woodward J in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Ors (1988) 81 ALR 397 at 401:-16. At the time the proceedings were commenced in this Court, any lot which could be regarded as the subject of condition 2 had been sold. The only remaining lot was the subject of a contract which Mr Gray asserts had already been settled. In any case it is unlikely that the Court would have been persuaded to make a declaration which lacked utility.
- I believe that it is appropriate to consider awarding “solicitor and client” or “indemnity” costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the court will need to consider how it should exercise its unfettered discretion.
18. There is no evidence that the proceedings were maintained for an ulterior purpose or for obtaining a tactical advantage. The sole ground relied upon by the respondent is that the applicant maintained the proceedings where it had no real prospect of success. Furthermore, Mr Gray submits that whatever is the perceived motive for commencing the proceedings they were pursued for nothing and that the apprehension the applicant knew, or at least should have known if properly advised, that there was little prospect of success is heightened by the filing of the Notice of Discontinuance.
19. In accordance with r 37 in Pt 52A of the Supreme Court Rules, which applies to the assessment and allowance of costs payable by any party under an order of this Court pursuant to Pt 16 of the Land and Environment Court Rules, where costs are payable on an indemnity basis all costs incurred shall be allowed except to the extent that it appears that they are of an unreasonable amount or have been unreasonably incurred. The application of this rule takes into account the words used by Holland J in Degmam Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354 at 359 - 360.
21. The applicant is ordered to pay the respondent’s costs on an indemnity basis.20. I am satisfied that this is an appropriate case for an award of indemnity costs on the above basis.
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