Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd

[2010] NSWLEC 208

Land and Environment Court

of New South Wales

CITATION:

Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd [2010] NSWLEC 208

PARTIES:

APPLICANT
Wollondilly Shire Council

FIRST RESPONDENT
Foxman Environmental Development Services Pty Ltd

SECOND RESPONDENT
Phillip Foxman

THIRD RESPONDENT
Botany Building Recyclers Pty Limited

FOURTH RESPONDENT
Craig Hardy

FILE NUMBER(S):

40578 of 2010

CORAM:

Pepper J

KEY ISSUES:

PRACTICE AND PROCEDURE :- application to join party to Class 4 proceedings - person ought to have been joined as party initially and was necessary for the determination of all matters in dispute in the proceedings

LEGISLATION CITED:

Civil Procedure Act 2005 s 98
Uniform Civil Procedure Rules 2005 r 6.24

CASES CITED:

Peruse Pty Ltd v Sydney City Council [2009] NSWLEC 163; (2009) 169 LGERA 85

DATES OF HEARING:

8 and 13 October 2010

EX TEMPORE JUDGMENT DATE:

13 October 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Hones (solicitor)
SOLICITORS
Hones La Hood

FIRST TO THIRD RESPONDENTS
Mr C Lethbridge (solicitor)
SOLICITORS
Whittens Lawyers

FOURTH RESPONDENT
Mr A Hudson (solicitor)
Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

13 October 2010

40578 of 2010 Wollondilly Shire Council v Foxman Environmental Development Services Pty Limited, Phillip Foxman, Botany Building Recyclers Pty Limited and Craig Hardy

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: This is an application by way of notice of motion filed 27 September 2010 by Wollondilly Shire Council (“the council”), that Mr Craig Hardy be joined as a fourth respondent in Class 4 proceedings pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (“UCPR”).

2 Neither the first to third respondents, nor Mr Hardy, objects to the joinder.

Background

3 The proceedings relate to works carried out by the first to third respondents involving a development consent granted by the council to the second respondent, Mr Phillip Foxman, for the erection of a dwelling and fire trails at the first respondent’s property, Foxman Environmental Development Services Pty Ltd, at 35 Evelyns Range Road, The Oaks (“the property”).

4 On or about 7 October 2009, Mr Craig Hardy issued a construction certificate for “roadworks only” for the development on the property.

5 The council contends that the issuing of the construction certificate by Mr Hardy is invalid for a number of reasons which include (see paragraphs 57-67 of the points of claim filed 5 October 2010, particularly from paragraph 60 onwards):

(a) that the relevant work to which the construction certificate related was physically commenced on the land before the certificate was issued;

(b) that the construction certificate was issued absent a sewerage management facility application which was required to be submitted to the council prior to the issuing by Mr Hardy of the certificate the subject of the proceedings;

(c) that the design and construction of the road as depicted in the construction certificate was inconsistent with the location depicted in the consent; and

(d) that the design and construction of the road depicted in the construction certificate traversed an area of endangered ecological community contrary to the consent.

6 Correspondence was sent from the council to Mr Hardy notifying him that it wished to join him to the proceedings and seeking his consent. The correspondence went unanswered.

Hearing on 8 October 2010

7 The council relied in support of the application for joinder on two affidavits both sworn on 7 October 2010 by Mr Jason Hones, the solicitor for the council. These affidavits gave the background to the application for joinder, attached the development consent, the construction certificate and other relevant planning documentation and annexed the correspondence written by the council to Mr Hardy seeking his consent to the joinder.

8 When the notice of motion first came before me on 8 October 2010, counsel for Mr Hardy indicated to the Court that he was not ready for the motion to proceed because he had not been able to obtain adequate instructions from his client as to his cilent’s attitude to the motion. This was because Mr Hardy had been overseas.

9 As a consequence, the Court agreed to adjourn the hearing of the notice of motion until today, reserving the council’s costs of the adjournment.

Consideration: Mr Hardy Ought to be Joined as a Party

10 Rule 6.24(1) of the UCPR states:

If the court considers that a person ought to have been joined as a party, or as 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.

11 In my opinion, having regard to the material contained in the two affidavits sworn by Mr Hones, and the allegations made against Mr Hardy as particularised in the points of claim, I am both satisfied and consider that Mr Hardy not only ought to have been joined initially as a party to the proceedings but, moreover, is a person whose joinder is necessary to determine all of the matters in dispute in the proceedings. Accordingly, he is to be joined as a party to the proceedings

Costs of the Adjournment on 8 October 2010

12 The council seeks its costs of the adjournment of the hearing of the notice of motion on 8 October 2010, fixed in the amount of $350 and payable within 28 days by Mr Hardy (now the fourth respondent).

13 Mr Hardy argues that these costs should merely be reserved on the basis that he ought to have been joined earlier in the proceedings and because he was not in a position to deal with the motion on that date having only just returned from overseas.

14 I do not agree. The fact remains that, and as properly conceded by Mr Hardy’s counsel, Mr Hardy had ample notification of the council’s desire to join him as a party to the proceedings, and moreover, had sought his consent to joinder, which was ignored. It was Mr Hardy’s failure to attend to the request of the council earlier which resulted in him not being ready on 8 October 2010, thereby necessitating an adjournment.

15 This was not the fault of the council. Accordingly, the council is entitled to have the costs it unnecessarily incurred on 8 October 2010 recompensed. I therefore make the order that the council seeks, satisfied as I am given the limited amount sought, that a fixed amount of costs is appropriate in the circumstances (see s 98 of the Civil Procedure Act 2005 and at [80]-[84] in Peruse Pty Ltd v Sydney City Council (2009) 169 LGERA 85).

16 As a consequence of the joinder of Mr Hardy as the fourth respondent to the proceedings, consequential procedural orders are required. This is because the parties need additional time for the filing of their evidence and amendment of the pleadings as a result of the addition of the fourth respondent.

Orders

17 In light of the foregoing reasons the orders of the Court are as follows, that:

(1) Mr Craig Hardy be joined as the fourth respondent to the proceedings;

(2) the costs of the applicant on the motion be costs in the cause, subject to order 3 below;

(3) the costs of the adjournment of the hearing of the notice of motion on 8 October 2010 be payable by Mr Hardy within 28 days to the council fixed in the amount of $350;

(4) leave granted to the applicant to amend its points of claim. The amended points of claim are to be filed and served by no later than 15 October 2010;

(5) the first to third respondents are to file and serve their amended defences and evidence by 19 November 2010;

(6) the fourth respondent is to file and serve his defence and evidence by 3 December 2010;

(7) the applicant is to file and serve any evidence in reply to that of the respondents by 10 December 2010; and

(8) the proceedings are listed for any further directions and the allocation of a hearing date on 17 December 2010 before the List Judge.
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