Wollongong City Council v Falamaki (No 3)

[2009] NSWLEC 80

Land and Environment Court

of New South Wales

CITATION:	Wollongong City Council v Falamaki (No 3) [2009] NSWLEC 80
PARTIES:	APPLICANT Wollongong City Council RESPONDENT Masood Falamaki
FILE NUMBER(S):	40091 of 1997
CORAM:	Pain J
KEY ISSUES:	PRACTICE AND PROCEDURE :- Notice of Motion seeking to vary time for compliance with original orders made in 1999 - whether interlocutory orders should be varied - whether effect should be given to order for demolition - whether liberty to apply enables variation of orders
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 r 40.8, 42.1
CASES CITED:	Australian Hardboard Ltd v Hudson Investment Group (2007) 70 NSWLR 201 Brimaud v Honeysett Instant Print Pty Ltd (Supreme Court of New South Wales, McLelland J, 19 September 1988, unreported) Clairs Keeley (A Firm) v Treacy (2004) 29 WAR 479 Falamaki v Wollongong City Council (2001) 113 LGERA 207 Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 Nominal Defendant v Manning (2000) 50 NSWLR 139 Todd v Novotny [2000] WASC 308 Wentworth v Rogers (Supreme Court of New South Wales, Sperling J, 28 April 1995, unreported) Wollongong City Council v Falamaki [1998] NSWLEC 130 Wollongong City Council v Falamaki [1999] NSWLEC 23
DATES OF HEARING:	13 May 2009 14 May 2009 22 May 2009
DATE OF JUDGMENT:	22 May 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr J Ayling with Mr D Shoebridge SOLICITORS Fisher Cartwright Berriman RESPONDENT Mr M Vasilli (solicitor) (13 May 2009) Dr M Falamaki (in person) (14 May 2009) Mr D Knaggs (solicitor) (22 May 2009)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

22 May 2009

40091 of 1997 Wollongong City Council v Falamaki (No 3)

JUDGMENT

1 Her Honour: This Court made orders for the carrying out of work in relation to a partly constructed dwelling on Dr Falamaki’s land at 12 Arter Avenue, Figtree, in 1999. An order for demolition was suspended to enable specified building work to be done. Timeframes specified in the orders were varied by the Court of Appeal in 2001. These expired many years ago. At the time the orders were made excavation had occurred on the site and part of a steel framework had been erected. Both parties have filed Notices of Motion seeking variations of these orders, inter alia. Dr Falamaki was represented by a solicitor who was retained very close to the hearing on a limited basis and appeared at the first day of the two day hearing. Dr Falamaki represented himself on the second day. Dr Falamaki is represented by another solicitor today.

History of judgments/orders made

2 The orders sought in the Notices of Motion relate to orders made by Talbot J following judgment in Wollongong City Council v Falamaki [1998] NSWLEC 130 on 19 June 1998 and in Wollongong City Council v Falamaki [1999] NSWLEC 23 on 17 February 2009. The orders dated 17 February 1999 are as follows:

[sic – slabs] of levels 1 and 2 confined within the retaining walls and drainage shown in drawing No 979-1, 979-2 and 979-3 dated 25 January 1999 together with the existing structure will retain the surrounding lands.

…

3 In Falamaki v Wollongong City Council (2001) 113 LGERA 207, the appeal against the judgment and orders of Talbot J by Dr Falamaki, the Court of Appeal (Priestley, Handley and Powell JJA concurring) made orders dated 4 April 2001 as follows:

Dr Falamaki’s Notice of Motion

4 Dr Falamaki filed a Notice of Motion dated 13 February 2009 (the original Notice of Motion) seeking an order that order 1 made by Talbot J on 17 February 1999 be vacated (prayer 2), and seeking a declaration that order 2 made by Talbot J on 17 February 1999 had been complied with (prayer 3). During the hearing of the motion alternative orders to prayers 2 and 3 were substituted by Dr Falamaki’s solicitor and are the orders I will consider. They read as follows:

2. That the Orders of Talbot J dated 17 February 1999 and as varied by the Court of Appeal on 4 April 2001, be varied as follows:
(i) Order 2(iv) be complied within

[sic] nine (9) months;

(ii) Order 2(v) be complied within

[sic] one (1) month.

3. That Order 1 be amended and the following Order be substituted with the following Order.
4. That should the Respondent not comply with the preceding Orders then the Applicant is provided with liberty to restore for the purposes of the demolition of the subject

[sic].

5 Orders 1 (whether apprehension of bias by Talbot J), 4 (concerning condition 6 of a building application dated 8 December 1995 not complied with), 5 (concerning an original structural engineer’s certificate dated November 1998) and 6 (seeking an application of 24 April 1997 be dismissed with costs) of the original Notice of Motion were not pressed in the course of the hearing. Prayer 3 in the original Notice of Motion sought a declaration that order 2 of Talbot J made in 1999 had been complied with. That is also no longer pressed and could not be, given that the new order 2 now sought seeks an extension of time for compliance with order 2(iv) and (v) made by Talbot J in 1999 (see order 2 as set out in par 4). Given that the issues raised by Dr Falamaki substantially narrowed during the first day of the hearing, for which I commend Dr Falamaki and his solicitor, the amount of evidence which the Court had to consider was far more limited than if the terms of the original Notice of Motion had been pressed.

6 In final submissions on the second day Dr Falamaki asked that orders 1 and 2 of Talbot J be reversed so that if I do not vary the demolition order it would appear as the second order of the Court. In Court today a further version of orders sought by Dr Falamaki was handed up.

Council’s Notice of Motion

7 The Council filed a Notice of Motion dated 12 February 2009 seeking:

[demolition of the structure on the Respondent’s land]

[sic] incidental to the respondent’s notice of motion… forthwith, as agreed or assessed.

[sic] incidental to this notice of motion forthwith as agreed or assessed.

…

8 The Council also handed up an alternative set of orders sought only in the event that the orders in the motion of 12 February 2009 are not granted, as follows:

(iii) Within 3 months of the date of this Order the Respondent must complete all structural works necessary for the support of the surrounding lands, in accordance with the drawings referred to in order 2(i)(a) and (b) of the Orders made on 17 February 1999 with such works to commence forthwith.
(iv) Failing compliance with (iii), Order 1 made on 17 February 1999 shall without further order operate, so as to oblige the Respondent to do the demolition and restoration work therein, such work to be completed within 1 month of the date upon which the failure to comply occurs.
(iva) Failing compliance with Order (iv) the Council is directed pursuant to UCPR Rule 40.8 to enter the land at 12 Arter Avenue, Figtree and carry out the work necessary to effect compliance with Order 1 of 17 February 1999.
(ivb) The Respondent must pay the Applicant’s costs and expenses of carrying out the works referred to in Order (iva).

Evidence

9 An affidavit of Dr Falamaki, sworn 13 May 2009 was read in part (par 1-6, 20, 23, 40-41, 44-46, 49-51). Dr Falamaki sets out his experience and qualifications as an engineer and builder. Dr Falamaki attests to spending $120,000 based on his undertaking to the Court to erect the retaining structure. He states that, pursuant to order 2(iii) made by Talbot J, he prepared the site for the completion of construction of the retaining structure and that this commenced two years prior to the making of the orders by Talbot J. He states that this order to commence construction of the retaining structure was complied with and that he therefore also complied with order 4 made by the Court of Appeal on 4 April 2001, which was a substitution of order 2 made by Talbot J. He states that he is of the view that the decision by the Court of Appeal to remove the time parameter in the orders pf Talbot J was in recognition. that there was no risk to safety in granting an extension of time. Dr Falamaki also attests to, on the advice of a solicitor, filing Notices of Motion in January 2009 in this Court to address remaining issues in the judgments of Talbot J. He states he was advised that the current proceedings are not an appeal of the 1999 decision but the liberty to restore order means orders and declarations can still be sought to deal with practical issues of compliance with orders made. In terms of Dr Falamaki’s finances, he attests that he will suffer significant financial hardship if his consent lapses due to not having been substantially commenced because this would render the site effectively worthless. Because there are court orders affecting the site it cannot be sold and his financier has retracted any construction finance.

10 An affidavit of Marcus Jones, structural and civil engineering consultant, sworn 4 May 2009 was annexed to Dr Falamaki’s affidavit and was read. Mr Jones provided an expert opinion in April 2008 that the structure and associated retaining system were structurally adequate to support the adjacent land to a level of risk of landslip equivalent to the then existing condition of “medium risk” as per the AGS guidelines. He states his concurrence with the report of Bruce Hargreaves dated 11 February 2008 (below) in relation to geotechnical issues. Mr Jones’ report (prepared by him but signed by Mr Jones’ employer) states that the engineering method adopted by Dr Falamaki of retaining the resulting earth pressures is innovative and an elegant solution to a challenging site. Mr Jones was also retained by Dr Falamaki to respond to the evidence of Mr Sherson (below) dealing with structural issues. Mr Jones states in his affidavit that footings at the site, shown to Mr Jones in a photograph, are founded on tightly jointed intact rock and that, if all footings are founded in such a way, they have been placed satisfactorily. Mr Jones states that he was informed that, as a consequence of a 1 in 300 year ARI storm event on 17 August 1998 parts of the embankments of the excavation which had stood firm since December 1996 were eroded. Mr Jones agrees with the proposal of Dr Falamaki to fill the cavities behind the retaining walls by lean mix concrete to eliminate the effects of soil creep.

11 Also annexed to Dr Falamaki’s affidavit was an affidavit of Bruce Hargreaves, geotechnical consultant, sworn 11 May 2009. In preparing his report dated 11 May 2009, Mr Hargreaves attests to being provided with three reports of 1990, 1995 and 1997 proposed by Coffey Partners International (Coffey) after geotechnical investigation of the site (each annexed to the affidavit), a plan prepared by the Council showing actual and proposed depths of excavation at the site, and a video tape showing excavation at the site during December 1997 and after the rainfall event in August 1998. Mr Hargreaves concludes, inter alia, that the post-excavation risk of landslip is less than moderate, that there has been no landslide on the site in the past 12 years and that there is a low risk of landslide occurring in the future unless the batters are exposed to a rainfall event more severe than that in 1998. That event was one of the worst rainfall events in the recorded history of the area.

12 Two other affidavits of Mr Hargreaves dated 9 February 2009 and 11 February 2009 were read for Dr Falamaki. The affidavit of 11 February 2009 annexes a report dated 11 February 2008 in which Mr Hargreaves addresses whether Dr Falamaki breached the building approval granted by the Council for the site. He concludes that there was no breach (I note not a relevant issue now). The affidavit of 9 February 2009 annexed a report dated 9 February 2009 which Mr Hargreaves prepared on the question of whether the condition of the site was geotechnically safe and whether there was a risk to the public including the property of adjoining landowners. Mr Hargreaves concludes that the likelihood of batter failure was unlikely to rare. Given that likelihood and a consequent risk to property as minor, the overall risk in terms of geotechnical safety was low to very low.

13 Two additional expert reports of Mr Hargreaves were annexed to Dr Falamaki’s affidavit of 3 April 2009. Mr Hargeaves’ report of 31 March 2009 was in response to the expert report of Peter Stone dated 17 February 2009 (below). Mr Hargreaves concludes that the site has rock at relatively shallow depths meaning deep-seated soil movements cannot be generated. Mr Hargreaves states that Mr Stone did not offer data to support an assumption that the rainfall event of 1998 was not as severe as other rainfall events in 1988 and 1990 and that rainfall data in fact shows that the 1998 rainfall event was more severe than those in 1988 and 1990. Mr Hargreaves’ report of 1 April 2009 was in response to Mr Stone’s report of 24 February 2009 (below) on the issues of rainfall data, Mr Hargreaves’ observations at the site, the reports of Coffey, the classification of risk instability of the slope at other neighbouring sites and the existence of Sydney Water sub-surface infrastructure.

14 An affidavit of Peter Stone, geotechnical engineer, was read for the Council. Mr Stone provided an expert report dated 17 February 2009 at the request of the Council and another report dated 24 February 2009 in response to the report of Mr Hargreaves dated 9 February 2009. In the first report Mr Stone addressed, inter alia, risks associated with the property including the risk of significant landslip and the measures that should immediately be taken. Six colour photos of the site were annexed to his report. The second report addressed the issue of the existence of landslip, or fretting and erosion, in terms of differences in the risk assessment undertaken by Mr Stone and Mr Hargreaves, and Mr Stone’s concerns of a safety hazard at the site due to the unsupported excavations.

15 Ultimately there was substantial agreement between Mr Hargreaves and Mr Stone and this became apparent when they gave concurrent oral evidence. Mr Hargreaves and Mr Stone stated that they were in agreement that the stability of the soil at the site had been compromised by the deep cutting of 7m and this increased the risks of instability leading to landslip, particularly in the top level of soil of 1m and 3m on top of the shale. The site could be rendered safe however if appropriate works were undertaken and that the site should be fenced off in the meantime as a matter of urgency. The experts agreed that active instability (the term used by Mr Stone) or gradual fretting and erosion (the term used by Mr Hargreaves) had occurred at the site over the years causing the top part of the soil to progressively deteriorate. This in turn has resulted in neighbouring soil slipping into the excavation and caused the excavation to encroach into adjoining properties. The land on the southern boundary is presently sterilised from development as a result.

16 The two experts also discussed the potential for the instability of the excavation to increase with an extended rainfall incident and agreed to disagree. The experts differed in their opinion as to whether the August 1998 rainfall event amounted to an extended rainfall incident for the purposes of deciding whether the site had already withstood this potential for further landslip. It had, according to Mr Hargreaves. Mr Stone did not consider that the August 1998 rainfall event was such an extended rainfall event and considered there was a greater risk of instability if a prolonged rainfall event occurred than Mr Hargreaves did.

17 It was agreed that the potential for rainfall could not be predicted and therefore it was impossible to determine when the remediation work had to be completed by except that it was preferable this be done sooner rather than later. Both experts agreed that fencing off the excavation should occur as soon as practicably possible and that risk management requires that stabilisation of the site also occur as soon as possible. The potential for further risk in terms of rainfall and its effect on increasing ground water which could adversely affect the stability of the site was further discussed in response to questions put to the experts by Dr Falamaki. Mr Hargreaves considered the existing batters had to made safe. Both experts could not say definitely that nine months was an appropriate amount of time to wait for the orders to be complied with given the uncertainty of rainfall over that period.

18 Two affidavits of Phillip Allen, structural consultant, sworn 6 February 2009 and 26 February 2009 were read for Dr Falamaki and address the issue of rusting of the existing structure. The report of Mr Allen dated 6 February 2009 addressed whether the partial rusting of the steel structure constituted a risk to the public, including to the property of adjoining landowners. It concluded there was no such risk. The second affidavit attached a report by Mr Allen dated 26 February 2009 which observed that there was no apparent rusting of the interior of the steel structure near the base and that this observation would apply to all columns leading to a conclusion that structural integrity has not been impaired by corrosion.

19 An affidavit of Donald Sherson, structural engineer, sworn 3 March 2009 was read for the Council. It attached two reports dated 27 January 2009 and 17 February 2009, the latter in response to the report of Mr Allen dated 6 February 2009. The reports addressed, inter alia, the condition of the structure at the site, the safety of the structure, the secureness of the embankment and the retaining walls and the assessment of potential risks at the site. Mr Sherson stated in the 27 January 2009 report that the property had been excavated excessively and the failure to retain the excavation has created risks in the steel’s integrity and risks for neighbouring properties. In response to Mr Allen’s report, Mr Sherson states in his 17 February 2009 report that Mr Allen did not assess the risk to the public from failure of the steel structure from laterally applied soil loadings and also did not assess the effect of internal corrosion in open-topped hollow columns from water collected in them and his report was therefore in error and incomplete. Mr Sherson agreed with Mr Allen that the rust on the structure was not detrimental to the structural integrity of the framework but disagreed with his assessment that the stiffening plates within the structure did not impair the overall stability of the framework. He was of the view that the steelwork would require extensive investigation of corrosion before the structure could be realigned.

20 Mr Sherson gave oral evidence. Mr Sherson stated his belief that work should commence on the site to erect a fence immediately and this would require erection on neighbouring land. Work on the excavation should also commence immediately because there was a progressive failure of the bank extending into adjacent properties and the risk of failure of the bank would be exacerbated if there was heavy rain. The work would ideally be completed within a month as the risk of heavy rain could not be ruled out. Mr Sherson stated that the cheaper alternative to remediation would be demolition. Mr Sherson was cross-examined by Dr Falamaki on issues of credit for quite some time. Mr Sherson gave details of his professional expertise and role in a general engineering practice. He stated that he is not currently practicing as a geotechnical engineer. Mr Sherson described his engagement in producing reports on the risk of landslip in relation to properties neighbouring the site in 1987 and 1988. Three letters from Mr Sherson to the owners of these neighbouring properties were tendered by Dr Falamaki and questions asked as to whether Mr Sherson had made any prior inconsistent statement compared to the evidence in his latest report of 2009. Mr Sherson stated that an excavation of 7m depth would remove the support for the layer of shale existing under the overburden of soil which could cause the shale to slide into a coal seam at the site. He also confirmed his view during cross-examination that he was concerned about lateral pressure on the existing steel structure on the site due to lateral pressure from soil that had fallen around the base of the structure.

21 After the close of hearing on 14 May 2009 Dr Falamaki filed a Notice of Motion seeking leave to rely on further evidence in relation to the evidence of Mr Sherson that he did not prepare a geotechnical report in 1987 for Lot 34 Arter Avenue, Figtree. At the hearing of that motion today the Council conceded that at the time of the letter dated 17 December 1987 from Mr Sherson to Mr Dwyer, Mr Dwyer was the owner of Lot 34 Arter Avenue Figtree. Therefore Mr Sherson was in error when he gave evidence at the hearing that Mr Dwyer owned Lot 38. As a result of that concession it was unnecessary to read the affidavit of Dr Falamaki dated 18 May 2009 filed in support of the Notice of Motion.

22 I also allowed to be read paragraphs b, c and d of the written submissions of Dr Falamaki dated 21 May 2009. These stated that Mr Sherson did hold the view in 1987 that shales in this area are stable and free from any landslip movement. The whole of Mr Sherson’s evidence is in doubt as a result of his error and this affects his credit as an expert witness. The Council’s counsel made oral submissions that the error should have no impact on the credit of Mr Sherson in terms of his evidence given on oath at the hearing. That opinion was held by him at the time of the letter of 1987, more than ten years ago. He has expressed a different view in his more recent evidence in 2009 as matters may well have changed in the intervening period.

Dr Falamaki’s submissions

23 The orders made by Talbot J as amended by the Court of Appeal were final. There is a liberty to restore provision in the Court of Appeal decision of February 2001 which enables the Court to consider the orders afresh and make orders which are within the spirit of the judgments of Talbot J. The liberty to restore provision does not confer the right to ask to vary the order but provides an opportunity to seek clarification by declaration or some amendment to give effect to the orders. The orders of Talbot J need to be amended so as to give effect to the purpose of the orders which may have been complied with already in substance but not form. Further, it is the Council’s own case for demolition that such liberty needs to be enlivened. Specifically, there is a deficiency in order 1 which does not provide the identity of the person upon whom such an obligation to demolish rests. Giving effect to the orders sought in Dr Falamaki’s Notice of Motion would permit the continued operation of the consent upon the land where works have been substantially commenced. To not give effect to the orders sought such that the structure may remain would be to negate substantial compliance for the purpose of retaining the consent, and to order the demolition of a structure which is otherwise safe which would be punitive in nature. It is within the spirit of Talbot J’s two judgments that order 1 be amended and replaced by order 4 in Dr Falamaki’s Notice of Motion (par 2), namely that if order 2(iv) and (v) is not complied with the matter can be brought back to the Court by the Council in relation to demolition. (I note that the most recent draft orders handed up by Dr Falamaki’s solicitor earlier today provide differently.)

24 The site is safe and that is supported by Talbot J’s findings in his judgment of June 1998. It is the intent of the orders made by Talbot J and the Court of Appeal that the works be certified safe, not that they be demolished. The Council has failed to enforce the orders made by the Court.

25 It is reasonable for nine months to be given for compliance with orders 2(iv) and one month for order 2(v) as that is how long the work is likely to take and this will enable Dr Falamaki to find the necessary finance. Order 2(iii) has been complied with as the necessary work had been done at the time Talbot J made orders on 17 February 1999.

26 A number of cases were referred to as setting out the principles applicable to the exercise of the general discretion of the Court to revisit final orders, exercising the “liberty to apply” provisions as provided in order 5 of the Court of Appeal made on 4 April 2001.

Council’s submissions

27 Talbot J's orders are interlocutory in form and were so considered by the Court of Appeal in 2001. They are final in substance however given that they were intended to determine finally the issues considered by his Honour in his judgments of 19 June 1998 and 17 February 1999. They have not been amended since 2001 by any further Court order. The principles articulated in cases such as Wentworth v Rogers (Supreme Court of New South Wales, Sperling J, 28 April 1995, unreported), Brimaud v Honeysett Instant Print Pty Ltd (Supreme Court of New South Wales, McLelland J, 19 September 1988, unreported), Nominal Defendant v Manning (2000) 50 NSWLR 139, Todd v Novotny [2000] WASC 308 and Clairs Keeley (A Firm) v Treacy (2004) 29 WAR 479 are applicable.

28 The Court can exercise its discretion to vary orders 1 and 2 made by Talbot J as these are interlocutory in nature but the authorities make clear that this can be done only in very limited circumstances, given that they are essentially final orders in substance. The Council submits no such discretion should be exercised in this case to allow further time for compliance given the substantial period of several years in which the orders have not been complied with since the extension was granted by the Court of Appeal to 9 May 2001 and 6 June 2001. Order 2 for demolition as contained in the Council’s Notice of Motion dated 12 February 2009 should be made. Appropriate orders giving effect to the order for demolition can be made after further discussion with the parties as to the form of orders necessary to achieve that outcome.

29 Alternatively the second set of orders handed up in the hearing (par 8) varies orders 2(iii) and (iv) to allow a three month period to complete the structural work required by the plans referred to in order 2(i)(a) and (b). The Council does not raise as an issue compliance with orders 2(i) and (ii). There is an issue whether order 2(iii) has been complied with given that no work has been done on the site since the orders of Talbot J and the Court of Appeal were made. The main issue to focus on however is order 2(iv) which requires the work to be completed in any event. It is necessary to give effect to the order for demolition without requiring yet further Court appearances. Dr Falamaki is required under order 1(iv) to effect demolition if further work does not occur without the need for further order. Under order 1(iva) the Council could enter the land and undertake demolition itself under Uniform Civil Procedure Rules 2005 (UCPR) r 40.8 (Substituted performance) if demolition by Dr Falamaki does not occur, with recovery of costs under order 1(ivb).

Finding

30 There has been a substantial narrowing of the issues with which I need to deal in this matter so that much of the evidence relied upon in terms of the numerous expert reports read, as identified above, does not need to be considered in detail. I note that in any event there did not appear to be a great deal of disagreement amongst the parties’ respective experts. The importance of that evidence is to inform the Court’s decision about what extension of time for the building work should be given to Dr Falamaki, assuming that I decide to make such an order.

31 In terms of the issues in dispute as between the parties in light of the amended motions filed by each, there is no evidence that any work has been undertaken on the site since the orders were made in 1999 by Talbot J, and in 2001 by the Court of Appeal. There is now no dispute that orders 2(iv) and (v) of the orders of Talbot J in 1999, as extended by the Court of Appeal in 2001, have not been complied with, contrary to the position of Dr Falamaki at the outset of the hearing. Dr Falamaki has submitted that he has complied with order 2(iii) of Talbot J because of work done prior to that order being made by Talbot J. Dr Falamaki stated that he intended to identify that work on a DVD produced in 1998. I note that the part of his affidavit dated 13 May 2009 which refers to that DVD was not read in these proceedings. Nor would there have been utility in the Court viewing the DVD for two reasons.

32 Firstly, it is inherently unlikely that an order by Talbot J would be made for work to be done if the work already existed as this would have rendered unnecessary such an order. Order 2(iii) requires that work specified in the plan required to be prepared in order 2(i) be commenced within a certain time. The plan required by order 2(i) also had to be prepared and that had to happen before the work in order 2(iii) could be done in any event. Secondly, there is no need to spend longer on this issue as no matter what the work required to be commenced by order 2(iii) is, order 2(iv) requires that it be complied with in a certain timeframe. That has not been done. Dr Falamaki seeks an extension of time to undertake that work in the amended Notice of Motion. I will therefore focus on order 2(iv) and will not further consider order 2(iii).

33 Dr Falamaki sought to emphasise that under the general law of liberty to apply the Court has discretion to vary final orders to enable earlier orders to be given effect to. He submitted that it is open to the Court to amend the order to demolish in order 1 to provide that in the event that order 2 is not complied with the Council has liberty to restore the matter to the Court for the purposes of seeking demolition (although I note that the draft orders filed in Court today are in different terms). The primary contention of Dr Falamaki is that the site was found to be safe in 1999 and it continues to be. An extension of time to comply with the orders and amend the order for demolition is within the intent of the Court as found in the judgments of Talbot J in 1998 and 1999. This view was also reflected in the Court of Appeal’s reasoning in 2001 to allow an extension of time to comply with the orders.

34 These submissions fail to recognise that the obligation to comply with the orders fell and continues to fall on Dr Falamaki. The fact that the Council has not taken enforcement action in the ensuing years does not in any way alleviate his responsibility for complying with the orders. It is clear from the evidence before me that the situation has changed since 1999 when the orders were made and that work is needed to be done at the site to protect neighbouring properties, if for no other reason. I consider that the judgments of Talbot J made clear that demolition was the responsibility of Dr Falamaki. I do not consider order 1 needs any clarification but for abundant caution it can identify within the order that Dr Falamaki is responsible for demolition. Order 2 made by Talbot J does clearly refer to the Respondent being responsible for the work required to be done.

35 Several cases referred to by the Council’s counsel considered whether multiple applications to vary interlocutory orders amounted to an abuse of process, which argument the Council is not pressing here. In the course of those decisions general principles to apply when determining whether interlocutory orders should be amended subsequently were identified. In Brimaud McLelland J stated:

In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application …

36 In Wentworth v Rogers Sperling J stated that:

as a general rule, an interlocutory order made after a hearing at which each side has the opportunity to put its case should not be set aside, varied or discharged, except to accommodate a change of circumstances or where evidence has become available which was not available at the earlier time. By the same token, where an application for interlocutory relief has failed, a further application for the same relief should, as a general rule, not be entertained, subject to the same qualifications, at least after a hearing on the merits, particularly where the application is designed to finalise the principle proceedings, such as an application for summary judgment or for a permanent stay

37 A more lenient approach was considered by two of three judges of the Court of Appeal in Manning. An application had been made seeking leave to commence an action out of time after such an application had already been refused by another judge. In granting leave, Heydon JA and Foster AJA held that it is not always the case that an applicant making a second interlocutory application will be guilty of an abuse of process although a litigant bringing such a second application would be taking “serious and self-created risks of an adverse exercise of jurisdictional discretion” (per Heydon JA at 156, see also Foster AJA at 167). Mason P refused leave on the grounds that the second application amounted to an abuse of process in part due to the failure to tender evidence on the first occasion which was available at the time. Todd v Novotny also considered whether a second interlocutory application was an abuse of process.

38 The matter I must determine is whether the Court should enforce Talbot J‘s order, as amended by the Court of Appeal, or grant an extension of time despite the previous timetable for compliance with orders having lapsed many years ago. While the Court does have discretion to vary Talbot J’s orders, that discretion should not be lightly exercised, see Wentworth v Rogers and Brimaud. One relevant factor is whether there is a change of circumstance since the orders were made. While Dr Falamaki has sought to rely on extensive material, that has largely related to events prior to the making of orders in 1999.

39 This is in fact the first application to this Court made by Dr Falamaki to vary the orders made by Talbot J, albeit more than eight years after order 2 was to be complied with following the extension granted by the Court of Appeal in 2001. As to whether there has been any change of circumstance since the orders in 1999 and 2001 were made, Dr Falamaki has stated in his affidavit that he had financial difficulties because of the existence of the demolition order in order 1 made by Talbot J. Dr Falamaki’s explanation of his financial situation as stated by his solicitor from the bar table is that the making of order 1 requiring demolition caused his bank to withdraw finance. No detail is provided of the efforts he has made to otherwise obtain finance. I have no information about his financial position generally so it is difficult to establish what his financial capacity is in determining if the generous timeframe of nine months should be given to complete the work. Despite his financial circumstances he nevertheless wishes to have the opportunity to complete the work.

40 I must first decide if I should confirm order 1 made by Talbot J that demolition should take place, given that more than eight years have elapsed since the Court of Appeal orders expired and there is no evidence of work on the site having occurred to comply with these orders. That is the primary order that the Council seeks. To do so will no doubt cause Dr Falamaki financial hardship in that he will lose the value of what has been constructed (he has spent $120,000) and will also incur the cost of demolition. The cases to which I have been referred which deal with interlocutory orders suggest that where these orders are effectively final they should not be further varied but nevertheless I do have that discretion (as the Council accepted). Exercising my discretion very generously in Dr Falamaki’s favour I will not immediately enforce order 1 made by Talbot J but will allow a further extension of time to comply with orders 2(iv) and (v). The Court’s orders 2(iv) and (v) must be given effect to not least to ensure there is no further impact on the surrounding properties.

41 In relation to the expert evidence on the safety of the site, a plan attached to the March 2009 report of Mr Sherson shows that the area of the excavation is encroaching onto neighbouring land on the western boundary (by approximately 3m with further movement of soil up to 9m) and the southern boundary. The land on the southern boundary is sterilized from any development in its present state due to the encroachment resulting from the excavation of Dr Falamaki’s land. Due to ongoing exposure to the elements over more than eight years the site is gradually deteriorating and will continue to do so unless action is taken, as agreed by Mr Hargreaves and Mr Stone. Mr Hargreaves and Mr Stone agree that work is needed to remedy the impact on neighbouring land. That includes immediate fencing of the area, which I note falls outside the terms of the orders before me. Work will also be needed to shore up the existing batters before work required by order 2(iv) can commence safely.

42 The evidence in relation to the soundness of the structure presently erected is somewhat equivocal. Mr Allen’s evidence suggests the structure is sound and rusting is not a problem. Mr Sherson considers further investigation is needed before that conclusion can be reached due to the ongoing exposure to the weather and because soil has fallen at the base and is likely to be exerting lateral pressure. The Council in its submissions has not stated that the existing structure requires immediate removal on safety grounds. The structure appears to be satisfactory provided work is done to shore up the existing batters to prevent further soil falling. No issue is raised about the adequacy of the foundations or the building methods proposed by Dr Falamaki so that I do not need to further refer to the evidence of Mr Jones (par 10).

43 The next matter to decide is whether the nine months sought by Dr Falamaki ought be granted or the three months identified in the Council’s alternative orders. This is a difficult issue to determine on the evidence as no expert opinion was provided on the time required for the building apart from that provided by Dr Falamaki in oral submissions that he considers it will take up to nine months. Neither Mr Hargreaves nor Mr Stone felt able to be definitive on when the work should be done in order to avoid further slippage of the soil on top of the shale. An extended (unpredictable) rainfall period could give rise to such an event at any time.

44 Mr Sherson considered work needed to be undertaken immediately because of the risk of a landslip. The admission that Mr Sherson was incorrect in his evidence at the hearing in relation to which lot Mr Dwyer owned in 1987 so that his 1987 letter was referring to the lot now belonging to Dr Falamaki, does not undermine the credibility of all his evidence contrary to Dr Falamaki’s submissions that it does. His conclusion in 1987 that shales in the area are stable and free from any landslip movement does not mean he cannot form a view in 2009 that there are potential landslip issues on the site because of the excavation work undertaken there by Dr Falamaki. Circumstances have clearly changed and the site is now in a different condition to ten years ago.

45 On the other hand the site has not changed significantly since 1999, apart from the active instability identified by Mr Stone, or fretting and erosion as identified by Mr Hargreaves. In other words there has been no sudden slippage of a large amount of soil since Court orders were made in 1999 and 2001. It is impossible to predict whether the extended rainfall period which the geotechnical engineers considered would potentially cause greater instability will occur in that timeframe. On balance I will allow Dr Falamaki the nine months he seeks to do the work. I understand that the Council is taking action separately to have Dr Falamaki install a fence on the neighbouring land around the perimeter of the excavation. That would appear to be urgent. Shoring up of the existing batters also appears to be required urgently.

46 Next I must decide if I make the orders sought by Dr Falamaki in relation to order 1 made by Talbot J. He argued that under the liberty to apply provisions (assuming for the moment that the order is final) it is appropriate that the order be “amended” as proposed. The orders which Dr Falamaki sought at the hearing are set out above at par 4. Orders in somewhat different terms have been handed up earlier today and also need to be considered. Liberty to apply does not allow an original order to be substantially amended or varied and does not allow it to be set aside (see Australian Hardboard Ltd v Hudson Investment Group (2007) 70 NSWLR 201, Campbell JA (Tobias JA concurring) at [51] referring to Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 at [54]. As the order is interlocutory but essentially in final form, similar reasoning should apply so that substantial amendment or variation is not appropriate. I will further discuss with the parties whether the form of order 3(a) handed up today by Dr Falamaki is appropriate. Arguably it does not change the intent of order 1 made by Talbot J but does change the numbering. Any order should make crystal clear that the obligation to demolish, if it arises, falls on Dr Falamaki. A time frame in which demolition should occur must also be specified. Dr Falamaki should now be well and truly aware of his obligations to comply with the Court’s orders, including the order for demolition if that arises.

47 Finally, the Council has asked for an order that it be able to undertake demolition of the structure on the site under r 40.8 of the UCPR if Dr Falamaki does not comply with any amended orders so as to avoid the need for further litigation. This rule provides that the Court may direct that an act required to be done by a judgment of the Court be carried out by a person appointed by the Court with costs payable to that person. There has been extensive litigation in this matter and it is in the parties’ interests, and of Dr Falamaki’s neighbours who are affected by the excavation carried out on Dr Falamaki’s land, that there be certainty in relation to demolition without the need for further hearing before this Court. Such an order would appear to be appropriate. The draft orders handed up by Dr Falamaki today, which contain an order to that effect, and those proposed in the alternative orders relied on by the Council require further discussion before final orders are made.

48 The Council seeks a declaration that orders 2(iv) and (v) made by Talbot J have not been complied with. The evidence suggests such a declaration ought be made in addition to the final orders I will make following further discussion with the parties. I will deal with costs separately.