Woollahra Municipal Council v Goldberg

[2009] NSWLEC 32

Land and Environment Court

of New South Wales

CITATION:

Woollahra Municipal Council v Goldberg [2009] NSWLEC 32

PARTIES:

APPLICANT
Woollahra Municipal Council

RESPONDENT
Leon Goldberg

FILE NUMBER(S):

41098 of 2008

CORAM:

Sheahan J

KEY ISSUES:

COSTS :- Proceedings settled

CASES CITED:

Kiama Council v Grant [2006] 143 LGERA 441

DATES OF HEARING:

24 March 2009

EX TEMPORE JUDGMENT DATE:

24 March 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Simington Solicitor of
Lindsay Taylor Lawyers

RESPONDENT
Mr L Goldberg (in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

24 March 2009

41098 of 2008 Woollahra Municipal Council v Goldberg

EXTEMPORE JUDGMENT

1 His Honour: These proceedings are now resolved save for the question of costs.

2 They were essentially resolved by an undertaking given by the Respondent when the Chief Judge sat to hear the matter on 22 December 2008. His Honour gave a direction that the matter come back before the Duty Judge on 16 February 2009, and on that date I, as Duty Judge, was told that there were only a few items of work and the question of costs to be finalised. I stood the matter over for further mention on 2 March 2009, and it came before Biscoe J as Duty Judge on 3 March. By consent, the matter was dismissed, save for the court arranging this hearing on costs.

3 In essence, Mr Goldberg says that these proceedings are an expensive way of achieving what the Council could have achieved by far less costly means, acting in accordance with this court’s policy on timeliness and minimising expenses to parties. On the other hand, the Council had issued its waste removal order on 5 May 2008, to no apparent effect, and held off until 3 November 2008 before commencing these enforcement proceedings.

4 Some extra costs were incurred by Council in this case in obtaining orders from the court for substituted service and expedition of the hearing. Such orders were made in Mr Goldberg’s absence on 21 November and 12 December 2008.

5 Mr Goldberg has now produced evidence (Exhibit G1) of undertaking knee-related treatment at St Luke’s Hospital on 5 September 2008 and then from 27 October to 13 November 2008. He has provided no affidavit, but informed the court he was not in residence while undergoing treatment and, I gather, later convalescing.

6 There is evidence in the Council’s case of only spasmodic sightings of Mr Goldberg at the subject premises, but he refutes the suggestion that he was evading service of documents, and asserts that he responded to those documents, which he in fact received, by contacting the solicitors for the Applicant Council on 19 December 2008.

7 However, he claims not to have seen all the documents relied upon by the Applicant until he searched the court file in preparation for today’s hearing. He does not say that they were not appropriately served, given the order for substituted service, merely that he did not get them.

8 In any event, once he established contact with the Council’s solicitors on 19 December 2008 the matter essentially and quickly resolved, saving substantial legal costs, but the fact remains that there was little, if any, response by Mr Goldberg to the waste removal order itself.

9 The court accepts Mr Goldberg was indisposed from 5 September, but he gives no explanation for taking no action on that Order from 6 May until 4 September, nor from 13 November to 19 December 2008 (subject in the latter case to his continuing knee problems following his discharge from hospital).

10 He submits that Council, rather than bringing these proceedings, should have either charged him with a breach of the Order or exercised its power to enter the premises, do the necessary work and bill him for it. These options are flagged on the notice itself. However, a Council would not generally enter the premises peremptorily for such a purpose, without obtaining an order from the court to do so.

11 Mr Goldberg made some other submissions which, I regret to tell him, were not particularly helpful to my determination of the question of costs.

· He challenged Council’s 5th prayer for relief, but most of the relief sought in the Class 4 application was taken up in his own undertaking, and Council was content to have the proceedings dismissed on the basis of the contents of that undertaking.

· Mr Goldberg further expressed the view that there should be short-form processes available and that unnecessary affidavit evidence was filed by Council in this matter, adding costs, but the Council seems to me in all respects to have complied with the terms and spirit of both the UCPR and the court’s own Practice Directions, and in an appropriate sequence. Having failed to locate Mr Goldberg to enter any negotiations with him, it became necessary to firstly seek substituted service and expedition, and then to prepare the case properly for hearing, in case it proceeded ex parte.

12 In all these circumstances I am satisfied that it was reasonable for the Council to commence the proceedings. Earlier similar Class 4 proceedings were resolved by consent orders in September 2007, but Council received further complaints in early February 2008, which resulted in the Order of 5 May 2008. There was clearly no satisfactory response to that order.

13 As better “compliance” was achieved by these proceedings, the Council is entitled to an order for costs. The undertaking of 22 December was an “effective surrender” – Council having won substantially the relief it sought in the Class 4 application, after Mr Goldberg declined to comply with the May Order. See Kiama Council v Grant [2006] 143 LGERA 441 at [80](a)(ii) and [82].

14 The making of an order for costs does not mean that the court embraces all of the items and charges contained in Council’s costs estimate as at 16 February, set out in its solicitors’ letter to Mr Goldberg of 20 February (Exhibit G2), quoting a figure in excess of $31,000.

15 Often in cases of this kind costs are sought and may be ordered on an indemnity basis. No such order is sought in this case and no such order will be made.

16 A costs order will, however, be made in Council’s favour on a party-party basis. The parties can then resolve the amount to be paid by either reaching an agreement or submitting the matter to an assessment process.

Orders

17 The orders of the court will be:

1. The Respondent is ordered to pay the Applicant’s costs of these proceedings on a party-party basis, as agreed or assessed according to law.

2. The Exhibits may be returned to Mr Goldberg.

18 I will publish these reasons later today.