Wilson v Pittwater Council
[2000] NSWLEC 204
•09/15/2000
Land and Environment Court
of New South Wales
CITATION: Wilson & Anor v Pittwater Council [2000] NSWLEC 204 PARTIES: APPLICANT
RESPONDENT
Wilson & Anor
Pittwater CouncilFILE NUMBER(S): 40114 of 2000 CORAM: Cowdroy J KEY ISSUES: Costs :- claim settled - each party seeking costs - exercise of Court's discretion - compromise reached by parties - Court making no order for costs LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Supreme Court Rules 1970CASES CITED: Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia Ex Parte Lai Quin (1997) 186 CLR 624 DATES OF HEARING: 15/9/00 EX TEMPORE
JUDGMENT DATE :09/15/2000 LEGAL REPRESENTATIVES:
APPLICANT
Mr D Wilson (Barrister)SOLICITORS
Coyne & Whitemore SolicitorsRESPONDENT
RESPONDENT
Mr D Parry (Barrister)
Mallesons Stephens Jaques
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40114 of 2000
CORAM: Cowdroy J
DECISION DATE: 15/8/00
First Applicant
Anne Wilson
Second Applicant
Respondent
1. On 30 November 1999 orders were made by consent (“the orders”) in proceedings no 40142 of 1997 relating to work which the respondents (“Wilsons”) agreed to undertake at their premises known as 53 Prince Alfred Parade, Newport (“the site”). The work related to the demolition of an existing timber retaining wall, the removal of fill and the insertion of drainage controls to prevent storm water from accessing 51 Prince Alfred Parade, Newport (“No. 51”) which was at a lower level than the site.
2. Order 1(d) of such orders directed that the respondents provide the council with a certificate prepared by a practising civil engineer which certified that the drainage controls referred to in subparagraph (c) of the orders were adequate to prevent storm water on the subject site from flowing on to No. 51.
3. Subsequent to the making of the orders the respondents engaged the services of a civil engineer, Mr Hodgson. A meeting on site was held between Mr Hodgson and a representative of Pittwater Council (“the council”), that representative being Mr Colenbrander. It was believed by Mr Hodgson that certain proposals were acceptable and work was apparently carried out and inspected by Mr Hodgson on 25 February. However, the council by its solicitors, Mallesons Stephen Jaques, (“Mallesons”) had already written on the previous day, that is, on 24 February, pointing out that the proposals which Mr Hodgson intended were not suitable and stating inter alia that a concrete footing strip was required.
4. On 27 February 2000 Mr Hodgson prepared a report which made no mention of the matters raised in the facsimile of Mallesons sent three days earlier, namely, on 24 February 2000. On 6 March the report of Mr Hodgson was apparently forwarded to council by the solicitors for the respondents in proceeding no 40142 of 1999.
5. Between 6 March 2000 and 10 July 2000 no steps were apparently taken by either party. According to the evidence, the respondents were awaiting confirmation that Mr Hodgson's proposal was appropriate and satisfied the terms of the order. On 10 July 2000 Mallesons wrote to the solicitors for the Wilsons pointing out that the proposals of Mr Hodgson were unacceptable as was detailed in their letter of 24 February 2000.
6. On 13 July 2000 Mr Hodgson prepared another letter which indicated that the flow diversions were satisfactory and ‘ in accordance with the agreement’ . Such agreement appears to have been made between Mr Hodgson and Mr Colenbrander. I should say at the outset that there is no evidence before the Court from which the Court could conclude precisely that which was agreed to between Mr Hodgson and Mr Colenbrander.
7. On 20 July 2000 Mallesons again confirmed that the work which had been carried out did not satisfy its client's requirements. On 24 July 2000 Mr Wayne Treble and Mr Lance Doyle of the council inspected the work and prepared a memorandum in which they concluded that the work did not satisfy the requirements of paragraph (c) of the orders.
8. As a result the Wilsons commenced fresh proceedings in this Court by way of a notice of motion filed on 28 July 2000. When that matter came before the Court it was arranged that a fresh application would be filed, which is the current proceedings. The Wilsons seek declarations that the work performed by them satisfied the orders of the Court made in proceedings no 40142 of 1999. The application has been supported by affidavits both of Mr Derek Joseph Wilson, the first-named applicant, and by Mr Jack Hodgson, the civil and structural engineer retained by the Wilsons.
9. The council has also filed evidence in defence which is contained in the affidavit of Wayne McDonald Treble sworn 14 August 2000 and also of Paul Brisby sworn 14 August 2000. The council has defended the proceedings on two basis. Firstly, it said that the Court does not have jurisdiction to entertain this application. Secondly, it says that in any event the work which was the subject of the claim in the current proceedings was inadequate.
10. The matter has now been resolved and accordingly there is no need for the Court to consider the question of jurisdiction. However, there is a need for the Court to consider the background so that it can appropriately consider the question of costs. In Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia Ex Parte Lai Quin (1997) 186 CLR at 624, 625, McHugh J has confirmed that it is not necessary to litigate the whole of the proceedings in order to make a determination as to costs. By virtue of s 69 of the Land and Environment Act this Court has a wide discretion to award costs. The applicants do not seek an order for costs but the council makes an application that the Wilsons pay its costs.
11. The kernel of the present dispute lies in the fact that the original consent order is unspecific. No specification of the necessary work required to satisfy the council's requirements was included. It is the vagueness of the orders which has led to this application.
12. Independent evidence could have been provided by Mr Colenbrander as he was present at the original meeting but no such evidence exists. Accordingly, the Court is left to speculate that the work which council required was never performed. Certainly council has been consistent from the outset that the work which was proposed to be done by the Wilsons was not satisfactory. The affidavit of Mr Wayne McDonald Treble and the affidavit of Mr Brisby establish that the only satisfactory solution to the council was the construction of a masonry wall in place of the sleeper wall or alternatively to construct a concrete kerb at the foot of the existing wall.
13. When one looks at the correspondence it is apparent that such requirements were never previously stated in such terms at any earlier time. The letter of Mallesons of 24 February 2000 did not specify such a concrete wall but rather a concrete footing strip below ground (par [9]). There is a reference to a concrete upstand wall in the same letter (par [6]). Whether the proposals were in reality the same is ultimately of no consequence because of the resolution reached by the parties.
14. The settlement of the dispute is a compromise. The council’s proposal for a concrete wall or concrete footing has been abandoned. Further if the applicant considered that its work was adequate it has also compromised by agreeing to undertake further work. As such the Court considers that the order which is appropriate is an order that each party pay its own costs or, in another way, that there should be no order as to costs. I should add that if council’s argument that the Court had no jurisdiction had succeeded it would follow that the Court could make no order for costs: see Byron Shire Council v Vigden CJ & Donna’s Beach Pty Limited [1999] NSWLEC 285. The parties are to be congratulated upon reaching this resolution of a matter which has obviously caused considerable anxiety on both sides.
Orders
15. The Court orders:-
1. That the application in proceedings no 40114 of 2000 be dismissed, it being noted that the dismissal is made upon the basis of an agreement reached between the parties for the applicants to carry out work as set out in the handwritten notations which will be filed with the papers
2. That no order be made for costs.
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