Wollondilly Shire Council v Antoun (No 2)

[2010] NSWLEC 171

Land and Environment Court

of New South Wales

CITATION:

Wollondilly Shire Council v Antoun (No 2) [2010] NSWLEC 171

PARTIES:

APPLICANT
Wollondilly Shire Council

FIRST RESPONDENT
Simon Abou Antoun

SECOND RESPONDENT
Bechara Hanna Saad El Skaf

THIRD RESPONDENT
Bank of Western Australia Limited

FILE NUMBER(S):

40312 of 2010

CORAM:

Pepper J

KEY ISSUES:

PRACTICE AND PROCEDURE :- application to join bank as a necessary party to the proceedings on the basis of its repossession of a property upon which alleged unlawful structures had been constructed - summons sought relief specifically against other parties previously in possession of the property - joinder of bank necessary to the determination of all the matters in dispute in the proceedings

LEGISLATION CITED:

Civil Procedure Act 2005 s 56
Environmental Planning and Assessment Act 1979 s 121Y
Uniform Civil Procedure Rules 2005 r 6.24

CASES CITED:

Wollondilly Shire Council v Antoun [2010] NSWLEC 154

DATES OF HEARING:

15 September 2010

EX TEMPORE JUDGMENT DATE:

15 September 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr T Howard
SOLICITORS
Hones La Hood

FIRST AND SECOND RESPONDENTS
No appearance

THIRD RESPONDENT
Mr M Pike (solicitor)
SOLICITORS
Kemp Strang

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

15 September 2010

40312 of 2010 Wollondilly Shire Council v Simon Abou Antoun, Bechara Hanna Saad El Skaf and Bank of Western Australia Limited (No 2)

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: Before the Court is a notice of motion seeking to join the Bank of Western Australia Limited (“the Bank”) as the third respondent in these proceedings pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (“the UCPR”). For reasons which appear below this order is made.

Factual Background

2 The factual background to this application has largely been set out in an earlier decision of the Court in these proceedings and is adopted here (including all defined terms) for the sake of convenience and expediency (Wollondilly Shire Council v Antoun [2010] NSWLEC 154 at [4]-[20]).

Evidence of the Council

3 The council (in addition to the facts as found in Wollondilly) relied on an affidavit of Mr Ben Swain sworn 31 August 2010. Mr Swain is a solicitor employed by Hones La Hood, the solicitors for the council in the proceedings.

4 The affidavit deposed to communications between Mr Swain, Mr Jason Hones (Mr Swain’s supervising partner) and Mr John Fam, a solicitor employed by Kemp Strang, the solicitors representing the Bank. The communications concerned the Bank’s repossession of the property and consequential liability for the alleged unlawful structures constructed on it by the first and second respondents, Mr Simon Antoun and Mr Bechara El Skaf. Mr Antoun and Mr Skaf were previously the registered proprietors of the property.

5 After the vacation of the hearing of these proceedings on 16 August 2010 (which were listed for hearing on 17 and 18 August 2010), due to the Bank taking possession of the property, Hones La Hood wrote to Mr Fam on 17 August 2010 indicating that the hearing had been vacated and warning the Bank that should it fail to comply with the Notice of Intention to Give an Order issued by the council to it on 9 August 2010 (“the Notice”), the council would take appropriate steps to join the Bank as a respondent to the proceedings.

6 The letter requested the Bank, in the alternative, to simply remove the unlawful structures itself. The letter also drew to the Bank’s attention s 121Y of the Environmental Planning and Assessment Act 1979 (“the EPAA”) and the effect of that provision on it as successor in title. The letter stated that failure to remove the unlawful structures could constitute a breach of the EPAA.

7 On 27 August 2010, Mr Swain had a conversation with Mr Fam where Mr Fam told Mr Swain that he was still waiting on instructions from the Bank and that the Bank would like to “put the matter on hold until the property has sold”. Mr Swain indicated to the Bank that the council intended to issue an order to remove the structures if it did not receive communication of the Bank’s position by 30 August 2010.

8 On 30 August 2010, Mr Swain had another telephone conversation with Mr Fam wherein Mr Fam told him that notwithstanding several attempts he was unable to get a response from the Bank. Mr Fam told Mr Swain that he would update Mr Swain as to the Bank’s position by 3.30pm on 31 August 2010.

9 On the same day as the telephone conversation, Mr Swain wrote to Mr Fam stating that if the Bank failed to comply with the council’s Notice dated 9 August 2010, the council would issue an order to the Bank by “Friday 3 September 2009” to remove the structures. Presumably the Bank meant “2010”. The letter went on to state that failing to comply with the order the council would seek orders from this Court similar to those contained in the present notice of motion. Again the letter urged the Bank to avoid incurring unnecessary legal expenses and to remove the unlawful structures itself.

10 The letter also clearly stipulated that the council did not agree to placing the proceedings on hold pending the sale of the property. Finally, the council referred in the letter to the Bank’s refusal to provide an undertaking that the Bank remove the unlawful structures as a compromise position. The council stated that as a result of this refusal the council was required to incur legal expenses it would not otherwise have had to incur had the undertaking been given. The Bank was, therefore, on notice that the council could seek its costs in this regard.

11 The council also relied on an affidavit of Mr Jason Hones sworn 15 September 2010. Mr Hones is a partner at Hones La Hood. This affidavit attached communications between Kemp Strang and Hones La Hood over the form of an undertaking to be given by the Bank to remove the unlawful structures.

12 The first communication was dated 31 August 2010, and consisted of a letter from Kemp Strang offering a form of undertaking suitable to the Bank.

13 On 2 September 2010, the council responded by stating that the undertaking proffered by the Bank was unacceptable but that the council agreed to accept an alternative undertaking in the form enclosed in that correspondence.

14 On 13 September 2010, another form of the undertaking was received from Kemp Strang. On the same day, that undertaking was also rejected by the Bank but another alternative undertaking was proposed by Hones La Hood. Instructions were also sought in that correspondence on whether the Bank intended to contest the application for joinder. Finally, the letter stated that as a consequence of not knowing the Bank’s position, the council was preparing the application as if it were contested, and therefore, counsel had been briefed. The letter stated that it was the council’s position that it considered the Bank to be liable for its costs from 4 August 2010. It sought instructions from the Bank in this regard.

15 On 14 September 2010 Mr Hones received from Kemp Strang an executed undertaking from the Bank in the following form:

IRREVOCABLE UNDERTAKING

To: Wollondilly Shire Council
C/- Hones La Hood Lawyers
Level 4/54 Miller Street
NORTH SYDNEY NSW 2060

The Land: Lot 66 DP258766, 300 McKee Road, Theresa Park NSW (the “ Property ”)
The BANK OF WESTERN AUSTRALIA of 108 St George’s Terrace, Perth, Western Australia 6000, hereby irrevocably undertakes to WOLLONDILLY SHIRE COUNCIL , to do, or procure the doing of, the following things:-
1. Demolish and remove the steel framed structure located within the floor plain at the northern end of the Property by 11 October 2010 or prior to any sale of the Property, whichever is the earlier.
2. Demolish and remove the multi coloured metal clad shed located behind the dwelling house erected upon the Property by 18 October 2010 or prior to any sale of the Property, whichever is the earlier.
3. In the alternative to undertaking (2) above, to lodge with the Council a building certificate application, including (without limitation) a land/identification survey and engineering certificate of structural adequacy, in respect of the multi coloured metal clad shed located behind the dwelling house erected upon the Property by 18 October 2010 or prior to any sale of the Property, whichever is the earlier.
4. In the event that the Council resolves to refuse the building certificate application at undertaking (3) above, the demolish and remove the multi coloured metal clad shed located behind the dwelling house erected upon the Property within 4 weeks of the date of refusal of the building certificate application or prior to any sale of the Property, whichever is the earlier.
Dated this 14 ^th day of September 2010.
Executed by BANK OF WESTERN )
AUSTRALIA LIMITED in )
accordance with Section 127 of the )
Corporations Act 2001 (Cth) by: )

16 On the same day, the Bank confirmed that it consented to its joinder in the proceedings.

Statutory Framework

17 Rule 6.24(1) of the UCPR provides as follows:

6.24 Court may join party if joinder proper or necessary

(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.

18 This rule reflects the general principle that all parties to disputes that relate to the same subject matter should generally be dealt with at the one time. So construed the rule reflects the Court’s general concern to achieve finality in litigation.

The Bank is a Necessary Party and Must be Joined

19 Merely because the Bank has consented to its joinder to the proceedings this is not the end of the matter. The exercise of the Court’s power in this regard is discretionary.

20 Given that at the time the proceedings were commenced the Bank’s role in the possession of the property was not known, it cannot be categorically stated, at least on the material before the Court, that the Bank was a person who ought to have been initially joined as a party. Rather, the case for joinder must be put on the basis that by reason of its present possession of the property, the Bank has become a person whose joinder as a party is necessary for the determination of all matters in dispute in the proceedings.

21 Further, given the Bank is currently in possession of the property and given the summons seeks orders that the first and second respondents personally remove the unlawful structures from the property, it is tolerably clear that the Bank has become a necessary party for the purpose of the final disposition of the proceedings. This is because the order for the removal of the unlawful structures is presently directed to individuals who no longer have the right to enter the property in order to execute it.

22 While there is nothing preventing the council from discontinuing the Class 4 proceedings as currently constituted and recommencing proceedings against the Bank, to do so would be neither “just, quick” nor “cheap” (s 56 of the Civil Procedure Act 2005) given the effect of s 121Y of the EPAA.

23 Section 121Y of the EPAA states as follows:

121Y Effect of order on successors in title

An order given to a person binds any person claiming through or under or in trust for or in succession to the person or who is a subsequent owner or occupier to the person, as if the order had been given to that person.

24 The effect of this provision is that the order given to the first and second respondent to remove the unlawful structures binds the Bank as a subsequent owner or occupier of the property. It is, therefore, not necessary to recommence proceedings against the Bank, with all of the attendant costs, given that evidence establishing the liability of the first and second respondents for the construction and removal of the alleged unlawful structures has already been prepared and filed in these proceedings and served on the Bank. There is no warrant to recommence proceedings in these circumstances.

25 For these reasons it is appropriate that I order that the Bank be joined to the current proceedings.

Costs

26 As is evident from the factual background and the correspondence attached to the affidavits of Mr Swain and Mr Hones, the council believes that it is entitled to its costs, at least as from 4 August 2010. The Bank’s position in respect of costs is not known.

27 The parties have requested that the costs order made on 16 August 2010 remain undisturbed and that the costs of, and incidental to, the motion for joinder be reserved. This is to allow the parties further opportunity to discuss the general question of costs. In all the circumstances and in the hope that further Court time and parties’ costs are not additionally expended on this issue, the Court agrees to this proposed course.

Orders

28 The orders of the Court are as follows:

(1) the Bank of Western Australia Limited is joined as the third respondent in these proceedings;

(2) the matter is set down for further directions on 29 October 2010 at 9.30am; and

(3) the costs of, and incidental to, the notice of motion seeking the Bank’s joinder are reserved.


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