Wentworth v Woollahra Municipal Council

[1982] HCA 41

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy and Brennan JJ. The Honourable Mr. Justice Aickin died before judgment was given. Mason A.C.J., Wilson and Brennan JJ.

WENTWORTH v. WOOLLAHRA MUNICIPAL COUNCIL

(1982) 149 CLR 672

3 August 1982

Injunctions

Injunctions—Damages in lieu—Dwelling house erected in breach of planning ordinance—Private suit for injunction to require demolition—Injunction refused on equitable grounds—Whether plaintiff entitled to damages under Lord Cairns' Act notwithstanding that ordinance did not create a private right of action—Supreme Court Act 1970 (N.S.W.), s. 68.

Decisions

1982, August 3.
THE COURT delivered the following written judgment: -
In 1973 the appellant, Miss Wentworth, became the registered proprietor for an estate in fee simple of a property at Bellevue Hill in Sydney on which was erected a dwelling-house. She and her family occupied the property as a family home. The house enjoyed excellent views. In 1979 a house was erected on the land which adjoins the appellant's property and is owned by Messrs Andrew and Peter Kladis, the second and third respondents. This house is said to obstruct substantially the views from the appellant's house. The appellant alleged that the house was erected in breach of the Woollahra Planning Scheme Ordinance ("the Ordinance") and failed to conform to the building plans approved by the respondent Council. The appellant claimed that the erection of the house infringed cl. 43 of the Ordinance in that the width of the land at the front alignment of the building was almost 5 ft less than the minimum width of 50 ft which, according to her construction, the clause prescribed. The appellant invoked the aid of the Attorney-General for the State of New South Wales. A relator action was commenced in the Equity Division of the Supreme Court seeking relief by way of a declaration and a mandatory injunction requiring demolition of the building. (at p674)

2. Powell J. dismissed the action. He found that, as the width of the Kladis' allotment at the front alignment of their building was 45 ft 5 in., there was a non-compliance with the conditions prescribed by cl. 43(1)(a). However, he went on to find that the respondent Council was entitled to regard the non-compliance as "minor" and that in this circumstance the Council was authorized by cl. 43(2) to consent to the erection of the Kladis' dwelling-house. (at p674)

3. His Honour also held that, if the building had been erected otherwise than in accordance with the plans and specifications approved by the Council, the Council had a discretion not to require demolition of the building under s. 317B of the Local Government Act, 1919 (N.S.W.), that it had exercised this discretion against demolition and that it was not open to the Court to review that exercise of discretion. (at p674)

4. The Attorney-General withdrew his fiat a short time before an appeal to the Court of Appeal came on for hearing. The Court of Appeal ordered that the appellant be added as a plaintiff-appellant, the respondents conceding for the purpose of permitting the appeal to be heard that the appellant might be able to establish that she had suffered some special damage: Australian Conservation Foundation Inc. v. The Commonwealth ("A.C.F.") (1980) 146 CLR 493 , but the issue of standing was left in abeyance, to be determined at a later stage in the action. The appellant amended the statement of claim so as to claim damages in addition to the relief claimed initially. (at p675)

5. The Court of Appeal held that Powell J. was right to refuse to grant relief for breach of cl. 43(1)(a), but on the ground that the appellant was disentitled to equitable relief by reason of her laches and the Kladis' hardship. The destruction of the appellant's equitable rights, in their Honours' view, deprived her of any claim to damages under s. 68 of the Supreme Court Act 1970 (N.S.W.) ("the Act") for breach of cl. 43(1)(a). (at p675)

6. The Court remitted to the Equity Division that part of the appellant's case that related to the alleged failure to conform to the building plans, to determine in particular whether departures had occurred, whether the appellant had thereby suffered special damage, whether she had been guilty of laches, acquiescence and delay and whether the appellant was entitled to any, and if so, what relief. (at p675)

7. By her appeal to this Court the appellant seeks to have that part of her case that relates to the alleged breach of cl. 43(1)(a) remitted to the Equity Division for decision. Since the Court of Appeal hearing, the appellant's property has been sold pursuant to an order made by the Family Court. It follows that the only relevant head of relief now sought by the appellant is damages. (at p675)

8. Clause 43, so far as it is relevant, provides:
"(1) A dwelling-house shall not be erected -
(a) in Zone No. 2(a) on any allotment of land which has an area of less than 7,260 square feet and a width of less than 50 feet at the front alignment of the building; . . . (2) Notwithstanding the provisions of subclause (1) the responsible authority may consent to the erection of a dwelling-house on an allotment of land the area of which or the width of which at the front alignment of the building is not in accordance with the area or width prescribed by that subclause but which departs therefrom only to a minor extent. . . .". The Kladis' land was in Zone No. 2(a) and its area exceeded 7,260 sq. ft. (at p675)

9. In the courts below it seems to have been assumed without argument that cl. 43(1)(a) should be read as if "and" meant "or" so that the prohibition applies to land having either of the two characteristics mentioned. It is not immediately apparent why this should be so. However, it is possible that an examination of the function and purpose of the prohibition ascertained in the light of its relationship with other provisions in the Ordinance may justify the interpretation which has been placed upon it. We pass this problem by because the appeal may be disposed of on other grounds. (at p676)

10. The appellant's submission is that s. 68 of the Act authorizes the award of damages for breach of a public duty in cases where an injunction has been sought and is not granted. The section provides:
"Where the Court has power -
(a) to grant an injunction against the breach of any covenant, contract or agreement, or against the commission or continuance of any wrongful act; or (b) to order the specific performance of any covenant, contract or agreement, the Court may award damages to the party injured either in addition to or in substitution for the injunction or specific performance." In effect the appellant says that the Kladis, by continuing to maintain the building on the site are continuing to breach cl. 43(1)(a) and that this amounts to the "continuance" of a "wrongful act" within the meaning of s. 68(a), notwithstanding that the alleged infringement is of a public, not of a private, right. (at p676)

11. Section 68 re-enacts the provisions of Lord Cairns' Act 1858 (21 &22 Vict. c. 27) and its more recent N.S.W. counterparts, s. 32 of the Equity Act 1880 and s. 9 of the Equity Act 1901. Lord Cairns' Act settled the uncertainty which had previously surrounded the existence in Chancery of a power to award damages - see Grant v. Dawkins (1973) 1 WLR 1406; (1973) 3 a11 ER 897 . It enabled the court to award damages in lieu of, or in addition to, an injunction to protect a legal right or specific performance of a contract. (at p676)

12. The main object of the Act was to enable the Court of Chancery to do "complete justice" between parties by awarding damages in those cases in which it had formerly refused equitable relief in respect of a legal right and left the plaintiff to sue for damages at common law. An incidental object of the Act was to enable the Court to award damages in lieu of an injunction or specific performance, even in the case of a purely equitable claim. See Leeds Industrial Co-operative Society Ltd. v. Slack (1924) AC 851, at p 857 , per Viscount Finlay; Landau v. Curton (1962) E Gaz 369, at pp 374-375 , per Cross J.; Ferguson v. Wilson (1866) LR 2 Ch App 77, at p 88 , per Turner L.J. and per Cairns L.J. (1866) LR 2 Ch App, at p 91 ; Elmore v. Pirrie (1887) 57 LT (NS) 333, at p 335 , per Kay J. (at p677)

13. However, it has been said that neither Lord Cairns' Act nor its statutory successors gave power to award common law damages as such. The power to award common law damages was given to the Chancery Division by the Judicature Act 1873 and later by virtue of ss. 62 and 63 of the Act. The Equity Division of the Supreme Court has power to award common law damages - it is bound to grant all such remedies as any party may appear to be entitled to in respect of any legal or equitable claim brought forward. The power to award common law damages in a case in which equitable relief is sought in respect of a legal right diminishes the importance which s. 68 would otherwise have, though in some cases it may still be necessary to distinguish between the two sources of power. Here the power to award common law damages is of no avail to the appellant. She does not seek common law damages, for she does not suggest that cl. 43(1)(a) creates a private right. (at p677)

14. Whether the predecessors of s. 68 authorized the award of damages when equitable relief was refused has been a matter of considerable controversy. Hardie J. in Boyns v. Lackey (1958) 58 SR (NSW) 395, at p 405 thought that damages could not be given in cases where the plaintiff has "failed to establish a right, as at the date of the institution of the suit to equitable relief", adopting the view expressed in Daniell's Chancery Practice, 5th ed. (1871), vol. 1, p. 946, which was based on several English decisions, and is apparently supported by the comments of Starke J. in King v. Poggioli (1923) 32 CLR 222, at p 247 and Dixon J. in J. C. Williamson Ltd. v. Lukey and Mulholland (1931) 45 CLR 282, at p 295 . The competing view is that damages may be awarded if the plaintiff's case is such as to attract equitable relief but for the existence of a discretionary defence which is found to prevail (see Goldsbrough, Mort &Co. Ltd. v. Quinn (1910) 10 CLR 674, at p 701 , per Isaacs J.). The foundation for this opinion is to be found in cases in which the courts, having refused equitable relief on discretionary grounds, have awarded damages or directed an inquiry as to damages. However, in at least some of these cases it appears that the court was awarding, or entertaining a claim for, common law damages. So, in Fullers' Theatres Ltd. v. Musgrove (1923) 31 CLR 524 this Court refused equitable relief without prejudice to the plaintiff's claim for damages at common law. In Summers v. Cocks (1927) 40 CLR 321 the Court apparently relied on the Judicature Act power to award common law damages in addition to, if not to the exclusion of, the Lord Cairns' Act provision. See also Tamplin v. James (1880) 15 ChD 215, at pp 222, 223 ; Bosaid v. Andry (1963) VR 465, at 479 . And in Dell v. Beasley (1959) NZLR 89, at p 97 , McCarthy J. held that the plaintiff's case for equitable relief having been refused on discretionary grounds, she was entitled to damages under Lord Cairns' Act or at common law. (at p678)

15. Cairns L.J. (later Lord Cairns L.C.) seems to have thought that the power to award damages conferred by the 1858 Act could be exercised if the plaintiff made out as at the commencement of the suit the ingredients of a case for equitable relief, notwithstanding that ultimately he failed to obtain that relief on discretionary grounds. In Ferguson v. Wilson (1866) LR 2 Ch, at pp 91-92 , after quoting the words of the section, he said:
"That, of course, means where there are, at least at the time of bill filed, all those ingredients which would enable the Court, if it thought fit, to exercise its power and decree specific performance - among other things where there is the subject matter whereon the decree of the Court can act - in a case of that kind, the Court has a discretionary power to award, under certain circumstances, damages in substitution for, or in addition to, the decree for specific performance. The object obviously was to enable the Court of Chancery to do 'complete justice,'as it was called, a phrase which assumed that there was the power in the Court of Chancery to make a decree to some extent, but not to make a decree to the whole extent which the case required." (Emphasis supplied.) (at p678)

16. Subsequently in Sayers v. Collyer (1884) 28 ChD 103 Bowen and Fry L.JJ. thought that nominal damages could be awarded under the 1858 Act even though the plaintiff's case for an injunction was defeated by acquiescence. More recently in Landau v. Curton (1962) E Gaz 369 Cross J. followed this approach to the Act and awarded damages in respect of a purely equitable claim when the equitable right to an injunction was lost by acquiescence. (at p678)

17. It is obvious that a discretionary defence to a claim for equitable relief does not, if made out, operate as a defence to a claim for common law damages for infringement of the legal right on which the case for equitable relief is based. Although damages under s. 68 are not common law damages and they are expressed by the statute to be given in lieu of, or in addition to, the basic claim for equitable relief, it conforms to the main object of the statue if damages in such a case are awarded under the section, even though the claim for equitable relief is defeated by a discretionary defence such as laches, acquiescence or hardship. We are content to assume, without finally deciding, that this is so. (at p679)

18. The crucial issue, then, is whether s. 68 authorizes an award of damages for infringement of a statutory duty which does not create a civil cause of action. The question arose for decision in Attorney-General (N.Z.) v. Birkenhead Borough (1968) NZLR 383 . There a block of flats had been erected in contravention of s. 38A of the Town and Country Planning Act 1953 (N.Z.). It prohibited, except with the consent of the local council, a change of use of land after a planning scheme had come into operation; it also prohibited the continuation of any such change of use. It was found that, as the land had previously been used as the site of a single dwelling-house, the new development constituted a change of use to which the council had not validly consented. Richmond J. held that the adjacent landowner who suffered special damage by reason of non-compliance with s. 38A had a right to ask the court to exercise its equitable jurisdiction by way of injunction to secure compliance with the public general duty imposed but had no claim for damages because there had been no interference or threatened interference with a private right. (at p679)

19. This approach was endorsed by Cooke J. (with whom Richmond P. agreed on this point) in Stininato v. Auckland Boxing Association (Inc.) (1978) 1 NZLR 1, at p 23 where the Court of Appeal rejected the contention that damages could be awarded under Lord Cairns' Act in respect of an invalid decision of a domestic tribunal. Cooke J. thought that "it could not be right" to let damages in "by the side wind of a discretion under Lord Cairn's Act" (1978) 1 NZLR 1, at p 23 . (at p679)

20. The same conclusion was reached by a majority of the Full Court of the Supreme Court of South Australia (Jacobs and King JJ.) in Neville Nitschke Caravans (Main North Road) Pty. Ltd. v. McEntee (1976) 15 SASR 330 . King J. (1976) 15 SASR, at p 351 , with whom Jacobs J. agreed, stated that "the authorities do not justify an extension of the right which exists to recover particular damage sustained as a consequence of public nuisance to particular damage sustained as a consequence of infringements of public rights or of public law generally". On the other hand, Bray C.J., though not expressing a final opinion on the question, had difficulty in accepting that a plaintiff who successfully established a claim to an injunction under the second limb of Boyce v. Paddington Borough Council (1903) 1 Ch 109, at p 114 , was not entitled to damages in substitution for the injunction. (at p680)

21. Bray C.J. said (1976) 15 SASR, at p 341 :
"I cannot help reflecting that in the context of breach of statutory duty the distinction between the two limbs of Boyce's Case . . . may be a distinction without much practical consequence. Since damage to the plaintiff is presumably of the gist of an action for breach of statutory duty when the breach gives rise to an ordinary private civil right of action, the only difference between such an action and an action for interference with a public statutory right from which the plaintiff suffers particular damage would seem to lie in the nature of the damage, and if I am right in the conclusion I have reached about that, then in the overwhelming majority of cases it would be a matter of indifference how the action is characterized. But as the distinction exists in theory I have sought to apply it." (at p680)

22. It is true, as Bray C.J. noted, that the circumstances of Boyce, a public nuisance case, provided a somewhat unpromising foundation for the establishment of a general principle that whenever a plaintiff suffers special damage from interference with a public right, including within that concept a violation or intended violation of a statute dealing generally with matters of social or economic regulation, he can obtain an injunction and damages. None the less he thought that the existence of a general principle should be acknowledged. His Honour has been vindicated by the recognition by this Court of the existence of this principle, at least in its application to declaratory and injunctive relief: A.C.F. and Onus v. Alcoa of Australia Ltd. (1981) 149 CLR 27 . In Onus the Court accepted the statement of Gibbs J. in A.C.F. (1980) 146 CLR, at p 527 that the expression "special damage peculiar to himself", used by Buckley J. with reference to the second limb of the proposition which he enunciated in Boyce, was equivalent in meaning to "having a special interest in the subject matter of the action" - see Onus (1981) 149 CLR, at pp 35-36, 42-43, 60-61, 68-69 ; cf. Aickin J. (1981) 149 CLR, at pp 56-57 . (at p680)

23. In this respect the approach which we have taken differs from, and may be broader than, that taken in the United Kingdom. In Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No. 2) (1982) AC 173, at p 186 the House of Lords thought that to come within the second limb of Boyce the statute must create a legal right to be enjoyed by members of the public, and that a mere prohibition upon members of the public from doing what is otherwise lawful does not create such a right. However, as Brennan J. observed in Onus (1981) 149 CLR, at p 71 :
". . . the reformulated criterion of 'special interest in the subject matter of the action' facilitates the separation of the rule as to standing from the definition of the damage occasioned by a public nuisance which is recoverable at law . . . . The elements of the common law right to recover a pecuniary award for particular damage occasioned by a public nuisance are unlikely to furnish a general criterion of a private litigant's standing to sue for an injunction to restrain the contravention of a penal statute where the statute does not confer a personal right to sue for damages for its breach. It is not necessary for a private litigant to show that he would have an entitlement to damages if the law were breached before he can demonstrate a special interest in obtaining a declaration or an injunction to restrain a threatened breach."
His Honour noted that Lord Diplock's distinction between statutes which create public rights and statutes which contain mere statutory prohibitions against doing what would otherwise be lawful is reflected in the distinction between a special interest which gives standing and a mere intellectual or emotional interest which does not (1981) 149 CLR, at p 73 : (at p681)

24. This development in the law relating to locus standi gives emphasis to the difference between the statute which creates a civil cause of action at the suit of an individual, e.g., the action for damages for breach of statutory duty (which falls within the first limb of Boyce) and the statute which stops short of creating personal rights, but enables an individual who satisfies the "special interest" requirement to seek injunctive or declaratory relief. In the first case the plaintiff recovers the damage which he has sustained in consequence of the infringement of his right; he has no occasion to show that the damage which he sustained is greater than, or different from, that suffered by others. In the second case, the plaintiff has to show that he has a special interest, that he has sustained or will sustain special damage in the sense explained, as a condition of enforcing the public right. It would be incorrect to say that the plaintiff then stands in the shoes of the Attorney-General; his right to enforce the public duty is independent of the grant of a fiat; it may be pursued concurrently with relator proceedings by the Attorney-General. (at p681)

25. No doubt in some situations, of which Day v. Pinglen (1981) 148 CLR 289 may be a good example, it would be advantageous if the court had jurisdiction or power to award damages to the plaintiff who has a special interest, in lieu of protecting the public right by declaration or injunction. The award of compensation may in some situations in which the public right has already been infringed do greater justice between the plaintiff and the defendant, although it would not necessarily achieve anything for other members of the public who stand to gain from enforcement of the public duty. Indeed, there is some risk that the legitimate expectation of the general public that the law will be enforced by injunction, even a mandatory injunction, may be compromised if it be acknowledged that the court has power to award damages to an individual in lieu of granting an injunction to compel observance of the public duty. (at p682)

26. If we are now to declare that s. 68 applies to public as well as to private wrongs, we must ignore the insights which the history of Lord Cairns' Act offers. We know that it was called into existence with the principal object of enabling the Court of Chancery to do justice between the parties by awarding damages for infringement of private rights, whether legal or equitable. Equity's incapacity to award damages for infringement of private rights was the problem which the statute sought to solve. In 1858 it would not have occurred to anyone that, apart from public nuisance, damages might be awarded to an individual on violation of a public right or for non-performance of a public duty. And public nuisance, when actionable at the suit of an individual, is, despite its name, a personal cause of action for a tort. Certainly it could not have been supposed in 1858 that Lord Cairns' Act was intended to authorize an award of damages in favour of a plaintiff, who, asserting neither a personal cause of action nor violation of a private right, complained only of the violation of a public right created by statute or the non-performance of a public duty imposed by statute. And there is nothing in the later enactments, including s. 68 of the Act, to suggest that they were intended to go beyond the scope of the 1858 statute. (at p682)

27. Moreover, the very terms of the section suggest that it is exclusively preoccupied with private rights. The opening words of par. (a) and the whole of par. (b) deal with private rights. And, as Richmond J. noted in Birkenhead (1968) NZLR, at pp 392-393 the expression the "party injured" suggests that the statute contemplated the ordinary jurisdiction of the court in case of actual or threatened interference with private rights. (at p682)

28. It is, to say the least of it, curious that s. 68 should become the source of a power to award damages for breach of a statutory provision - in this case cl. 43 - when the assumption underlying the argument is that the clause does not create a civil action for damages. And it is no less curious that in such a case s. 68 should become the source of power to award damages, not to every member of the public who suffers damage, but only to those who suffer special damage, when the cause of the damage is a breach of a public duty. We think that the history and the terms of s. 68 show that it was not intended to authorize the award of damages for breach of a statutory prohibition which manifests no intention to create a private cause of action for damages. (at p683)

29. For these reasons we consider that the appellant has no case for damages under s. 68. Accordingly, we would dismiss the appeal. (at p683)

October 28.
THE COURT delivered the following written judgment: -
This is an application by the appellant, who was unsuccessful in her appeal to this Court, to vacate the order dismissing the appeal and for a rehearing or, alternatively, an order remitting to the Supreme Court the questions relating to what equitable remedies are available to her. At the conclusion of the oral hearing of this application, the applicant, who appeared in person, was given leave to conclude her submissions in writing. These submissions have now been considered by the Court. (at p683)

2. The circumstances in which the applicant's appeal was brought and the ground on which it was dismissed appear in the unanimous judgment of this Court which was delivered on 3 August 1982. The judgment makes it clear that the one question argued and decided by the Court was whether s. 68 of the Supreme Court Act, 1970 (N.S.W.) enabled that Court to award damages to the applicant for breach by the second and third respondents, Messrs. Andrew and Peter Kladis, of the provisions of cl. 43(1)(a) of the Woollahra Planning Scheme Ordinance. This Court assumed, without deciding, that there had been a breach of cl. 43(1)(a) and went on to hold that s. 68 did not confer jurisdiction to award damages for breach of a public duty imposed by a statute unless the statute according to its true construction created a private right of action. It was not argued that cl. 43(1)(a) created a private right of action. (at p684)

3. The applicant, who now appears in person, seeks to argue a number of grounds in support of her application. However, as we had occasion to point out recently in State Rail Authority of New South Wales v. Codelfa Construction Pty. Ltd. (1982) 150 CLR 28 , the circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard. (at p684)

4. Of the grounds advanced by the applicant in the present case one ground only - that the Court omitted to consider her claim for an injunction - could conceivably answer this description. However, on examination it is evident that this ground is without merit. The applicant points out that by her notice of appeal to this Court she asked for relief by way of declaration and injunction as well as relief by way of damages. However, she fails to acknowledge that Mr. Beaumont Q.C., who then appeared for her, in argument confined her case for relief to a claim for damages under s. 68. He did so because, during the course of the proceedings, the applicant had sold the property which, she claimed, had been adversely affected by the alleged breach of cl. 43(1)(a). A reading of the transcript makes it plain that the applicant's claim for relief was confined in the manner indicated. During the course of his argument, Mr. Beaumont said:
". . . there was another supervening event, namely the sale of the house, which means that damages is the only issue. That is the only claim that my client can possibly make . . . ". (at p684)

5. Mr. Beaumont rightly took the view that the sale by the applicant of her property deprived her of a basis for obtaining injunctive relief against the Kladis maintaining on the adjacent land a building which infringed the Ordinance and that her only arguable claim for relief was for damages. At no stage of his argument did he depart from this approach. In his concluding remarks he described the case as one in which prima facie an injunction should be granted and urged that if for discretionary reasons an injunction was considered inappropriate nonetheless damages should be awarded under the statute. These remarks could not be read as altering the complexion of the case as it had been presented and fought in this Court. They are no more than a statement of the foundation on which the claim for damages was presented as the sole issue for determination. (at p685)

6. The conclusion that a case for declaratory and injunctive relief was not argued on the appeal is fatal to the next ground advanced by the applicant, namely, that the Court erred in failing to decide whether there was a breach of cl. 43(1)(a). There was no need to decide whether there was a contravention of the Ordinance because the Court concluded that the claim to damages under s. 68 could not be maintained even it there was a breach. Her final ground - that the Court misconstrued s. 68 - is an attempt to reargue the substantial question decided in the appeal after hearing full argument from counsel for the parties. As such it stands outside the Court's jurisdiction to vacate the orders already pronounced. (at p685)

7. There is a cross-application by the respondent Council for an order for costs of the appeal pursuant to leave reserved in that respect when judgment on the appeal was pronounced. We consider that the Council is entitled to costs of the appeal. In this respect we mention three considerations which persuade us to this conclusion. The Council was joined as a party to the proceedings against whom relief was sought. Until the hearing of the appeal it seemed that the applicant was asserting that the Council as well as the Kladis was liable in damages. The Council was accordingly entitled to be represented on the hearing of the appeal, the outcome of which was in favour of the Council. (at p685)

8. The orders which we make are as follows: (at p685)

9. Miss Wentworth's application is dismissed with costs. (at p685)

10. On the Council's application order that Miss Wentworth pay the Council's costs of the appeal (excluding the costs of the application). (at p685)

Orders

Application by Miss Wentworth dismissed with costs.

On the Council's application order that Miss Wentworth pay the Council's costs of the appeal (excluding the costs of the application).