Wollongong City Council v Kudrynski (No 2)

[2013] NSWLEC 55

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wollongong City Council v Kudrynski (No 2) [2013] NSWLEC 55

Hearing dates:

Written submissions

Decision date:

03 May 2013

Jurisdiction:

Class 4

Before:

Sheahan J

Decision:

1.The respondents are ordered to pay the Council's costs, on a party-party basis, as agreed or assessed.

2. All exhibits may now be returned.

Catchwords:

COSTS - Principles to apply regarding costs in class 4 proceedings

Legislation Cited:

Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

Cases Cited:

Latoudis v Casey (1990) 170 CLR 534
North Sydney Council v Wouters [2012] NSWLEC 94
Warringah Council v Ulrich [2012] NSWLEC 234
Wollongong City Council v Kudrynski [2013] NSWLEC 4

Category:

Costs

Parties:

Wollongong City Council (Applicant)
Julius Kudrynski (First Respondent)
Alicia Kudrynski (Second Respondent)

Representation:

N/A
Wollongong City Council (Applicant)
N/A (Respondents)

File Number(s):

40173 of 2012

Judgment

Introduction

1. This judgment deals with competing applications by the parties for costs orders in respect of these proceedings.

1. The factual circumstances of this matter are clearly set out in detail in the substantive judgment - Wollongong City Council v Kudrynski [2013] NSWLEC 4.

1. Council brought the proceedings to obtain enforcement orders that Mr and Mrs Kudrynski remove unapproved structures and accumulated 'rubbish' stored on their premises at 14-16 Highway Avenue, West Wollongong.

1. Orders were made on 29 January 2013 for (1) demolition and removal of the structures I found to be unauthorised, (2) some reinstatement works, and (3) compliance with an earlier Council order (see [84]).

1. The respondents contended that all necessary approvals had been obtained, but they failed to discharge the onus of proof, nor did they make any coherent arguments for an exercise of discretion in their favour ([72]-[73]). Council established an absence of the relevant approvals and also adduced evidence, which worked against any exercise of discretion in favour of the Kudrynskis.

1. The question of costs was reserved, and the parties were invited to make written submissions on it (see [11]-[13], [83], and Order 5 in [84]).

1. Prior to the proceedings Council issued notices and had unsuccessful negotiations with the Kudrynskis' then representative. No agreement could be reached, and the Council sent them a further letter outlining its intentions.

1. The respondents made no attempt to negotiate with the Council, and, at the hearing, Mr Kudrynski put up a spirited defence on behalf of his wife and himself.

1. During the hearing Council moderated the relief sought as the evidence clarified the Kudrynskis' claims ([10], [43]). After two days of hearing Council filed revised short minutes and made submissions that if Council were successful in the proceedings a costs order should be made in the normal terms. (T23.10.12, p68, LL42-48).

Competing submissions

1. The respondents filed their submissions on costs on 5 February 2013, and Council responded on 13 February 2013.

1. The respondents' submissions requested orders that the Council pay all costs, but they provided little assistance to the court. The substance of them is now set out in full (emphasis in original):

1. My main case against Wollongong City Council was that C. Thorne conspired to pervert the course of justice. This came in the proceedings when I held 91/711 approval of pool cover by Wollongong City Council 6/6/1991 and said C.Thorne had this approval of the pool cover in one hand but with the other hand filled out demolition order item 8

"pool cover to be demolished as it is not shown on any approvals held by Council". "This is a blatant lie and I want a ruling on this and I want the ruling now". To this your Honour replied:

"How else could we get you into court?"

2. With the G.Coward letter I made at least 2 mistakes:

(i) I assumed the word "approval" meant "approval".

(ii) I carried out the work he ordered me to do. The majority of this work now has to be demolished. Wollongong City Council was unable to produce these "approvals held".

(iii) The original demolition order covered all structures visible from Google except (C). This structure was added at 4.00pm on 23/10/2012, i.e. after the case had finished.

(iv) The orders of 7/4/2011 were not handed to my representative until 9/5/2011 (thirty-two days afterwards). The LEC (Land and Environment Court) would not accept an appeal as it was more than twenty-eight days.

(v) Photographs held by the LEC are the result of an illegal search warrant and photos taken over the fence from private property.

(vi) Had your Honour accepted the evidence of L. Kitchener that would have confirmed statements by four people that C. Thorne did not/could not have come out when he said he did. The fact that he swore that V. King came out with him shows he lies with impunity.

1. The allegation against me at the conclusion of par 1 of those submissions is completely untrue, and no evidence was provided for it. No such statement or exchange can be located anywhere in the official transcript of the hearing, nor in notes retained by the court or by Council's solicitor (see T22.10.12 from p45, L38). In respect of the allegation in par 2(vi), see T22.10.12, p28, LL14-19, and pars [52] and [72] of the principal judgment.

1. The applicant Council noted that the submissions provided by the respondents are irrelevant to the determination of the question of costs, and merely raise "fresh and inappropriate", unsuitable attacks on Mr Thorn (written submissions par 20).

1. Council seeks an order that costs of the proceedings be paid by the respondents, as agreed or assessed, there being no circumstances which would warrant any other order being made. Further, the Council submits that the respondents were on notice in respect of costs, prior to the commencement of proceedings.

1. Council submits that although the ambit of its claim moderated during the proceedings, that should not lead to the conclusion that any costs order, other than the usual one - that costs follow the event - ought to be made.

1. The respondents' intransigent attitude to the Council before and during the proceedings resulted in the Council having to incur far more costs than would normally be the case. (See, for example, [41], [50], [52], [54], c.f. [74]).

1. Council submits, correctly, that it largely obtained the relief originally sought, and that the proceedings were determined in its favour.

1. It makes no claim for its costs to be paid on an indemnity basis.

Conclusion

1. Uniform Civil Procedure Rules 2005, Part 42, rule 1 provides that in Class 4 proceedings costs should follow the event, unless the court finds some other order should be made as to the whole or part of any costs.

1. Costs orders are made to compensate the successful party, not to punish the unsuccessful one, but only where there is no disentitling conduct. See Latoudis v Casey (1990) 170 CLR 534, North Sydney Council v Wouters [2012] NSWLEC 94, at [26], and Warringah Council v Ulrich [2012] NSWLEC 234, at [98]-[99].

1. In the present proceedings, I find that the Council's conduct of the dispute, and the proceedings themselves, has been entirely reasonable. There is no evidence of disentitling conduct.

1. In terms of an "event" for costs to "follow", the Council has been entirely successful.

Orders

1. The orders of the Court will, therefore, be:

(1)   The respondents are ordered to pay the Council's costs, on a party-party basis, as agreed or assessed.

(2)   All exhibits may now be returned.

Decision last updated: 03 May 2013