Willoughby City Council v Randall Pty Limited

[2005] NSWLEC 11

Land and Environment Court

of New South Wales

CITATION:

Willoughby City Council v Randall Pty Limited [2005] NSWLEC 11

PARTIES:

APPLICANT
Willoughby City Council

RESPONDENT
Randall Pty Limited t/as Monkey Bar Car Park

FILE NUMBER(S):

41220 of 2003

CORAM:

Talbot J

KEY ISSUES:

Costs :- application for leave to amend pleadings subject to separate order.

DATES OF HEARING:

23/11/2004, 24/11/2004

 
DATE OF JUDGMENT: 

01/13/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr J A Ayling SC with M/s H P Irish (Barrister)
SOLICITORS
Mallesons Stephen Jacques

RESPONDENT
Mr D J Hammerschlag SC with Mr P R Clay (Barrister)
SOLICITORS
Moloney Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

13 January 2005

41220 of 2003 Willoughby City Council v Randall Pty Limited (t/as Monkey Bar Car Park)

JUDGMENT

1 Talbot J: These proceedings relate to a dispute in respect of the use of an area known as the “Monkey Bar Car Park” at Chatswood. Class 1 proceedings have also been heard and determined by Commissioner Bly and by me on appeal from one of the decisions of Commissioner Bly.

2 On 23 November 2004 the hearing of these class 4 proceedings commenced. The hearing continued intermittently on 23 and 24 November. On 24 November, after extensive argument regarding the efficacy of the applicant’s Amended Points of Claim, orders were made in relation to the future conduct of the matter and it was adjourned for mention on 13 March 2005. The respondent now seeks an order that the applicant, pay the respondent, its costs thrown away as a consequence of the aborted hearing caused by the alleged inability of the applicant to plead its case.

3 The respondent argues that as a consequence of the defective points of claim and the proffering of defective proposed amendments, the proceedings foundered causing the hearing to be adjourned. Costs thrown away were occasioned by the fruitless amendment applications.

4 The proceedings were commenced by an Application Class 4 on 8 October 2003. On 15 October 2003 the applicant amended its Class 4 Application. Interlocutory orders were made by consent on 17 October 2003. The interlocutory orders were in relation to the operation of the Monkey Bar Car Park pending a final hearing.

5 Commissioner Bly delivered a judgment on 19 March 2004 as a consequence of which the applicant was granted leave to amend its class 4 application on 2 April 2004. On that same date directions were given for the applicant to file and serve points of claim by 13 April 2004 and for the respondent to file and serve points of defence by 20 April 2004.

6 The applicant served a Draft Points of Claim on the respondent’s solicitors on 13 April 2004 and Points of Claim were filed and served on 21 April 2004.

7 On 22 April 2004 the interlocutory orders made on 17 October 2003 were continued, with variations.

8 When the matter came before the Registrar on 24 September 2004 for directions the respondent was ordered to file points of defence by 8 October 2004 and affidavit evidence by 3 November 2004.

9 On 21 October 2004 the applicant served a Further Amended Class 4 Application and Amended Points of Claim. On 22 November 2004 the respondent delivered Points of Defence to the Amended Points of Claim. When the hearing commenced on 23 November 2004 I granted leave for the applicant to rely on the Amended Points of Claim served on 21 October 2004.

10 Mr Hammerschlag SC, who appears for the respondent, at the outset mounted an attack on the Amended Points of Claim. Mr Ayling SC, who appears for the applicant, was granted an opportunity to consider the Council’s position and to seek further leave to amend the points of claim, if necessary. Two Further Amended Points of Claim were prepared on 23 and 24 November and on both occasions I refused leave for the applicant to rely upon those further amended pleadings.

11 When the proceedings were adjourned on 24 November, following the refusal of leave, the applicant was directed to serve any further amended class 4 application and proposed further amended points of claim within 14 days. Leave was granted to rely on the amended documents if no objection was lodged in respect thereof by the respondent within seven days. A Further Amended Class 4 Application and yet a Further Amended Points of Claim were filed on 9 December 2004.

12 Both parties have responded to the Court’s invitation to rely on written submissions in relation to the respondent’s application for a costs order in respect of the costs thrown away. The respondent relies upon a voluminous affidavit by the solicitor having the day to day carriage of the matter, filed 8 December 2004. The affidavit, in effect, does no more than confirm the history of the matter summarised by me above.

13 On the one hand the applicant has shown a recurring inability to settle on the exact nature of the case upon which it proposes to rely. On the other hand the respondent has repeatedly ignored directions in relation to the filing of evidence and the points of defence. The Points of Defence were ultimately filed immediately prior to the hearing which commenced on 23 November 2004. The chronology of events disclose that it was not until the hearing commenced that the applicant was in a position to appreciate what the respondent intended to put against its pleaded case.

14 Nevertheless it became apparent during the course of argument that the applicant’s case, as pleaded, was untenable in many respects and that the points raised by Mr Hammerschlag in argument were matters that were evident on the face of the documents. Mr Hammerschlag was able to demonstrate that the pleadings needed to be revised without reference to the detail in the evidence.

15 Although it is reasonable to conclude that the applicant was taken by surprise as a consequence of the failure of the respondent to submit its points of defence, despite outstanding directions to do so, nevertheless the defects in the points of claim were fundamental and inherent. I am not appraised at this stage whether the fault lies in the manner of pleading or whether the Council is unable to make its case because of underlying defects or misconceptions in the conditions of development consent it is seeking to enforce.

16 At this stage however ultimately the argument is resolved by the simple fact that the pleading upon which the applicant relied was defective. That position continued notwithstanding ample opportunity to amend following commencement in October 2003 and again during the hearings on 23 and 24 November 2004.

17 The reason the matter was not able to proceed in November 2004 is based solely on the defective pleadings. The applicant was unsuccessful in its attempts to persuade the Court to grant leave to further amend the pleadings up to 24 November 2004 and ultimately was forced to take advantage of the further opportunity to do so pursuant to the directions made on that day. In the circumstances it is reasonable for the costs of 23 and 24 November 2004 to follow the event, namely, that the applications for leave to amend the points of claim were refused.

18 In the course of argument it was made clear to the parties that I had been persuaded by the arguments put on behalf of the respondent that the Amended Points of Claim in respect of which leave was granted on 23 November 2004 were defective. The delay by the respondent, although a contributing factor, was nevertheless not the root cause of the wasted hearing days. I do not propose to make an order in relation to the costs incurred up to 23 November 2004, as ultimately those costs may become costs in the cause. However I am satisfied that the costs of the actual hearings on 23 and 24 November should properly be paid by the applicant and I propose to make an order to that effect.

Orders

1. The applicant is ordered to pay the costs of the respondent in respect of appearance at the hearing on 23 and 24 November 2004.

2. All other costs reserved.