Bobolas v Waverley Council

Land and Environment Court (NSW)|2022-03-30|Before: Pain J, Duggan J

Judgment

In Bobolas v Waverley Council (No 3) [2021] NSWLEC 63 (Bobolas No 3) Duggan J dismissed the Applicants' judicial review challenge of a decision by the Respondent Waverley Council (the Council) to exercise its powers under s 678 of the Local Government Act 1993 (NSW) (LG Act) to carry out work at 19 Boonara Avenue Bondi (the premises) when an order to remove waste from the property issued under s 124 of the LG Act had not been complied with in the Council's view. The proceedings also sought to restrain the Council from alleged anticipated breaches of the LG Act. The Applicants were unsuccessful in establishing a breach of the LG Act or in obtaining a restraining order. Their summons was dismissed.
The background facts are that the Council issued an order under s 124 of the LG Act on 29 January 2020 requiring the removal of waste from the premises within a 28 day period. A notice of intention to enter premises to carry out work not done pursuant to s 678(1) of the LG Act was issued by the Council on 20 May 2021. It stated that the Council intended to enter onto the premises to undertake necessary waste removal work on 1 June 2021. At the interim injunction application hearing on 31 May 2021 the Council undertook not to enter onto the premises until one day after the determination of proceedings, with the hearing set down for 4 June 2021.
I am determining a notice of motion dated 21 June 2021 the Council has filed seeking an order that its costs of the proceedings be paid by the Applicants (Respondents on the Council's motion). The notice of motion was supported by an affidavit of Cecilia Rose affirmed 21 June 2021 which essentially identified the procedural history of the matter and annexed the Applicants' summons and the judgment in Bobolas No 3. The Council has advised the Court that it does not press an order for costs against Ms Lianna Bobolas. It does press a costs order against Ms Elena Bobolas and Ms Mary Bobolas her mother. Ms Elena Bobolas appeared as agent for her mother. Ms Lianna Bobolas did not appear. Ms Elena Bobolas submitted that the appropriate costs order was that each party pay their own costs.

Procedural history of costs notice of motion

On 13 August 2021 the Council's notice of motion seeking costs was set down for hearing on 25 March 2022. Orders for preparation of evidence by the Applicants were also made on 13 August 2021.
At the pre-trial mention on 11 March 2022 before me no evidence had been filed by the Applicants despite orders requiring that be done if evidence was to be relied on. Ms Elena Bobolas expressed an intention to do so. Further orders were made for the filing of evidence by the Applicants with provision for evidence in reply. I ordered a transcript for the hearings before Duggan J on 31 May 2021 and 4 June 2021 on 11 March 2022 to assist the Applicants whose attempt to order the transcripts in June 2021 according to Ms Elena Bobolas was not successful in that the Court Registry had no record of having received such an order.
At the outset of the hearing on 25 March 2022 Ms Elena Bobolas applied for an adjournment effectively without notice to the Council pursuant to a notice of motion dated 24 March 2022 seeking such an order and affidavit in support affirmed by her filed in the Court registry very late on Thursday 24 March 2022. The Council was provided with a copy of the notice of motion and supporting affidavit as it had not received it. Ms Elena Bobolas was given leave to move on that notice of motion at the commencement of the hearing on 25 March 2022. Accepting her submission without evidence that she was ill that day the matter was stood over to 30 March 2022 for hearing. I am aware that the Court Registry provided a copy of the transcripts for 31 May 2021 and 4 June 2021 to Ms Elena Bobolas on 24 March 2022. No evidence was otherwise filed by the Applicants.
On 30 March 2022 the hearing in relation to costs commenced. An affidavit of Ms Elena Bobolas dated 30 March 2022 filed on that day in the Court Registry was allowed to be read other than pars 7 and 8, over the objection of the Council given its extreme lateness. That affidavit referred to a conversation between Ms Elena Bobolas and Mr J F Schilt council officer on 25 May 2021 in which they discussed whether the Council would provide more time for the removal of waste material at the premises. A conversation on 21 June 2021 between them in which Mr Schilt stated that the clean-up was going well was also attested to.
It is agreed that the Council did not enter onto the premises to do any work pursuant to the s 678 Notice as it did not consider that was necessary due to the satisfactory clean up by the Applicants.

Council's submissions

The ordinary rule that costs should follow the event ought apply and a costs order be made in the Council's favour. The Applicants' summons was dismissed. No disentitling conduct has been established.
The relevant event informing the costs considerations is that the Applicants' summons was dismissed.
That an undertaking was given by the Council not to enter the premises to give effect to the order on or before 16 June 2021 was noted by Duggan J at [52]. That did not arise from any determination of a legal issue in the proceedings. The Council did not ultimately exercise its power to enter the property to carry out the work as the Applicants managed to complete it sufficiently. There was no concession by the Council in relation to any legal issue; this simply reflected the appropriate practical outcome in the circumstances.
The transcript of the hearing of the interim injunction application before Duggan J as duty judge on 31 May 2021 and the final hearing on 4 June 2021 can provide no assistance given that her Honour has delivered a final judgment.
Any costs order should be made against Ms Elena Bobolas and Mrs Mary Bobolas as Mary Bobolas is the owner of the premises, the recipient of the order in January 2020 and one of the named applicants in the summons represented by her agent Ms Elena Bobolas at the hearing of the summons as identified in Bobolas No 3 at [3].

Bobolas' submissions

The commencement of proceedings by the Bobolas' was reasonable. The Bobolas' tried several times to negotiate a longer time period with the Council to comply with the Notice to enable removal of waste. The usual period for such orders is 28 days and the Council should have agreed to give a period of 28 days from the date of the Notice issued under s 678 of the LG Act on 20 May 2021 or at least a two or three week period. Had it done so there would have been no need to commence these proceedings.
Awarding costs is a discretionary decision and costs orders are not intended to punish. The problem arises at the premises because an occupant has a psychological problem. The Council was given ample opportunity to discuss additional time for removal of waste and did not engage constructively in such discussions. In these circumstances the Applicants should not be punished. The relevant event for costs purposes is that the Bobolas did the work required by the order and the Council did not have to enter the premises and do any of the work. The Council did not have to undertake any work of removal of material and is not therefore entitled to its costs.
In the transcript of 31 May 2021 Duggan J stated that she was minded to restrain the Council from entering the property until the determination of the summons. Numerous references in the transcript of 4 June 2021 of the cross-examination of Mr Schilt were made to support the submission that 28 days is the usual time allowed for compliance with an order. Ms Elena Bobolas had asked Mr Schilt about extra time to complete the work on 25 May 2021, 28 days later being 17 June 2021.
If an order for costs is made it should not be against Mrs Mary Bobolas because she has a psychological problem and requires assistance in undertaking any work required by the Council.

Consideration

Recovery of costs is compensatory not punitive: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 69. The Court has wide discretion to determine costs: s 98 of the Civil Procedure Act 2005 (NSW). The usual rule in Class 4 proceedings under rule 42.1 of the UCPR is that costs follow the event meaning the outcome of proceedings. The guiding event is the outcome of the proceedings as that outcome was identified in Bobolas No 3. The Applicants' summons was dismissed meaning that their claims were unsuccessful. The judgment identifies at [10] the 6 grounds into which the various matters identified in the summons could be categorised. As noted at [15] there is no statutory requirement for a period more than 7 days to enable the Council to exercise its powers under s 678(1) of the LG Act. Accordingly there was no breach of the LG Act in the time period identified in the Notice given by the Council. The Applicants were unsuccessful on their other arguments alleging invalidity of the Notice. The Notice was found to be valid.
The anticipated breach by the Council grounds were also not established: at [46].
The judgment records at [45] the circumstances that had resulted in the Council not entering the premises. These observations do not hinge on any finding necessary to resolve the legal issues in the summons.
Her Honour's observed at [52] that notwithstanding the outcome in the judgment she hopes the Applicants continue to remove material. As the parties agree, they did do so and the Council did not need to enter the premises. That is a practical outcome arising from the circumstances outside the litigation and does not arise from Bobolas No 3. It is not a matter relevant to the determination of costs.
The surrounding circumstances which the Applicants relied on concerning attempts to negotiate a longer period for compliance (noting that the original order was issued in January 2021) and undertaking the work are not relevant events for the determination of costs.
The transcript of 31 May 2021 statements of Duggan J referred to by the Applicants were made before any evidence or argument had been heard, the matter then arising as an urgent interlocutory matter before the duty judge. That her Honour considered that was an appropriate order at that point in time (not ultimately made as the Council gave an undertaking pending the final determination of the summons) is immaterial to this costs matter which is being determined after the finalisation of proceedings which resolved finally the matters in issue.
The transcript references of 4 June 2022 were largely to confirm that the usual period for compliance with orders was 28 days, which can be accepted but has no relevance to this costs matter. The parts of the cross-examination of Mr Schilt relied on appeared to be attempting to suggest that the Council acted unreasonably in not agreeing to a 28 day period from the date of the s 678 Notice. That matter is also not relevant to this costs application given the findings in Bobolas No 3.
As stated above this exact issue was resolved against the Applicants in Bobolas No 3.
The Applicants have not identified any basis for varying the usual costs order.
For the reasons given by the Council the costs order should be made in relation to Ms Elena Bobolas and Mrs Mary Bobolas. The order for costs is to compensate the Council not to punish the Applicants.
Order 1 in the notice of motion will be made as varied to apply to Ms Elena Bobolas and Mrs Mary Bobolas.

Orders

The Court orders that: 1. Ms Elena Bobolas and Mrs Mary Bobolas must pay the costs of the Respondent Council in the proceedings, as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 April 2022

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