Wollongong City Council v Redford

[2010] NSWLEC 179

Land and Environment Court

of New South Wales

CITATION:

Wollongong City Council v Redford & Anor [2010] NSWLEC 179

PARTIES:

APPLICANT
Wollongong City Council
FIRST RESPONDENT
Peter Redford
SECOND RESPONDENT
Aust-Mac Developments Pty Ltd

FILE NUMBER(S):

40213 of 2010

CORAM:

Sheahan J

KEY ISSUES:

COSTS :- matter settled under protest - consent orders and declarations made - effective surrender - no disentitling conduct - hardship

LEGISLATION CITED:

Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CASES CITED:

Kiama Council v Grant (2006) 143 LGERA 441

DATES OF HEARING:

22 September 2010

EX TEMPORE JUDGMENT DATE:

22 September 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Cottom, Solicitor
SOLICITORS
Kells the Lawyers

FIRST RESPONDENT
In person
SECOND RESPONDENT
Submitting appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

22 September 2010

40213 of 2010 Wollongong City Council v Redford & Anor

EXTEMPORE JUDGMENT

1 His Honour: These are class 4 proceedings in which the Council alleges that the first respondent conducted, on land at Warrawong owned by the second respondent, a fruit and vegetable business which operated in a way not covered by the relevant consent.

2 The second respondent filed a submitting appearance quite early in the proceedings – the class 4 summons was filed on 26 March and the second respondent’s appearance was filed on 14 April 2010. The first directions hearing was before Pepper J on 23 April and the second on 2 July 2010. On that later date the hearing was set down for today and tomorrow.

3 Mr Redford has had professional planning advice, and some legal advice, but no formal appearance, Points of Defence, or evidence has been filed on his behalf.

4 He attempted to negotiate with Council, but was confronted by the clear words of condition 13 of the consent which makes very clear that his business must operate as a bulky wholesaler and not a neighbourhood shop. An application to modify the relevant conditions was refused by Council in November 2009, but no appeal was lodged.

5 About two months ago he ceased operating entirely, but did not inform Council. In preparation for this hearing Council discovered the closure when it attended the site about one month ago. Mr Cottom, solicitor for the Council, tried then to negotiate with the solicitor he believed was advising Mr Redford, but about one week ago Mr Redford personally negotiated a form of consent orders which were emailed or faxed to the court on Monday.

6 Although Mr Redford joined Mr Cottom in a statement filed in support of the proposed orders, he is clearly distressed about the closure of his business and Council’s persistence with the proceedings when he obviously could not afford proper representation to argue his case. I, therefore, sought and obtained the parties’ agreement to my reading the Council’s evidence. On the basis of that uncontradicted evidence I decided that the three declarations and one order in the “Consent Order” document of 20 September 2010, now signed by both Mr Redford and the solicitor for the second respondent, should indeed be made by the court.

7 That leaves the question of costs. Council filed and served concise written submissions on Monday in support of the usual order that the first respondent pay the applicant Council’s costs on the ordinary basis. Those submissions refer to s 98 of the Civil Procedure Act 2005, Rule 4.2 of the Uniform Civil Procedure Rules 2005, and the relevant pars ([80]-[87]) of the Chief Judge’s decision in Kiama Council v Grant (2006) 143 LGERA 441.

8 Mr Redford appears to understand the rules and principles, and not to quarrel with the submissions, but remains aggrieved that he has been “unable”, largely for economic reasons, to resist the Council’s case.

9 The circumstances of the case are not unusual, and there is no disentitling conduct even alleged against Council. The first respondent has effectively surrendered, although under protest.

10 Accordingly, the appropriate exercise of the court’s costs discretion is to make an order in the Council’s favour. The court explained to Mr Redford during this morning’s hearing that he can and should obtain advice on Council’s bill of costs, and that he has the right to have it assessed. He clearly has serious debts and very limited means as a result of the closure of the business, and should be given time to pay the costs.

Orders

11 The court, therefore, now makes the following orders:

(a) the three declarations in pars 1-3 of the “ Consent Order ” document before the court;
(b) the prohibitory order in par 4 of that document;
(c) an order that the first respondent pay the applicant’s costs of the proceedings, as agreed or assessed, on a party-party basis; and
(d) an order that the first respondent have twelve months from the date of such agreement or assessment to pay the costs so determined.