Burwood Council v Ralan Burwood Pty Ltd

Judgment 1SACKVILLE AJA: The appellant (Council) has appealed against a decision of the Land and Environment Court dismissing proceedings brought by it against the first respondent (Ralan): Burwood Council v Ralan Burwood Pty Ltd [2013] NSWLEC 173. The appeal was listed for hearing before this Court on 9 April 2014. The Court did not proceed with the hearing to allow the Council to consider whether other parties should be joined as respondents and, if so, by what means. 2The Council was the applicant in Class 4 proceedings in the Land and Environment Court concerning a major residential and commercial development project in Burwood (Property). The Property is the subject of Strata Plan 88309 (Strata Plan). The evidence shows that there are 330 lots in the Strata Plan. Ralan is the proprietor of ten lots, while the others appear to be individually owned. Some of the lots are leased, but it is not clear how many of the units are occupied by tenants. 3The respondents to the proceedings in the Land and Environment Court were Ralan, the developer of the Property, and two private certifiers. Subject to matters raised in the litigation, the construction of the building has been completed. 4The Council claimed that construction certificates issued by one of the certifiers were invalid because the design and construction of the building was inconsistent with the Council's development consent. The Council sought declaratory relief and also sought orders requiring Ralan to undertake extensive rectification works. Those works were referred to in the primary judgment as the "Morrish Changes".

The Objection as to Competency 5Shortly prior to the hearing of the appeal, Ralan, the only respondent actively participating in the appeal, filed a notice of motion. The motion sought an order requiring the Council to serve notice of the proceedings upon all owners and occupiers of lots comprised in the Strata Plan, inviting any interested person to apply to be joined as a party to the appeal. In effect, the motion challenged the competency of the appeal. The challenge was founded on the proposition that the lot owners and occupiers are necessary parties to the appeal since their rights will be affected if the Council succeeds in setting aside the orders made by the primary Judge. 6Evidence adduced by Ralan in support of the objection to competency indicates that the Morrish Changes relate to the façade of the building. While the façade is common property, the evidence also shows that the works are likely to require internal access to some lots and, in certain cases, the removal and replacement of fixtures and fittings within the lots. 7In the course of argument on the appeal, Mr Tomasetti SC, who appeared with Mr Johnson for Ralan, submitted that the relief sought by the Council attracted the principle that where a court is invited to make orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined: John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [131] (per curiam). It was pointed out that, in addition to the impact of the works on individual lots, each lot proprietor by statute has an interest as tenant in common in the common property (Strata Schemes (Freehold Development) Act 1973 (NSW), s 20). Mr Tomasetti further contended that it is for the party prosecuting the proceedings to join the necessary parties to enable the Court to make the orders sought: News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 526 (per curiam); Ross v Lane Cove Council [2014] NSWCA 50 at [51]-[59] (Leeming JA, Meagher JA and Tobias AJA agreeing). 8Mr Hale responded by contending that the Council was seeking orders only against Ralan and not against the lot proprietors. It would then be a matter for Ralan, in reliance on contractual or other rights it claimed to have against lot owners, to obtain any necessary consents for the rectification works or to exercise those rights to gain access to individual lots if that was necessary to carry out the works. Mr Tomasetti disputed this contention on the basis that the orders sought by the Council would necessarily affect the rights of lot proprietors, although not in a uniform manner. 9After hearing argument on Ralan's motion, the Court directed the Council to file a document as to the future course of the proceedings, including any amended notice of appeal seeking to cure any defect in the competency of the appeal. Alternatively, the Council was directed to formulate a proposed mechanism for the joinder of the owners of lots in the Property. The Court made provision for the filing of written submissions by the parties and listed the matter before me for the purpose of making directions as to the future conduct of the appeal.

The Council's Motions 10The course of the appeal since the hearing on 9 April 2014 has not been entirely smooth. The matter has been before me on three occasions. The Council now accepts that the lot owners are necessary parties to the proceedings, but the mechanism it initially proposed to join them as parties presented a number of difficulties. Ralan pointed out the difficulties and raised other issues that the Council was said to have overlooked. Ralan's position, in substance, was that all the lot proprietors and occupiers of units (and perhaps mortgagees and others) had to be joined and personally served if the appeal was to be properly constituted. Ralan insisted that it was keen to have the appeal heard, but it was equally insistent that all persons with interests in the Property were necessary parties and that representative orders would not solve the difficulty. Ralan did not propose any measures that would ameliorate the practical problems of joining all the parties it said were necessary to constitute the proceedings properly. 11On the third occasion the matter was before me, the Council was given leave to file a notice of motion seeking the following orders: "1 That the [Council], in addition to appearing on its own behalf in this appeal, be appointed to represent the owners and occupiers of lots in Strata Plan SP88309, being the building known as ... Railway Parade, Burwood, who support the making of the orders sought by the [Council] in the amended Notice of Appeal. 2 That [Ralan], in addition to appearing on its own behalf in this appeal, be appointed to represent in this appeal the owners and occupiers of lots in Strata Plan SP88309, being the building known as ... Railway Parade, Burwood, who oppose the making of the orders sought by the [Council] in the amended Notice of Appeal. 3 Within 48 hours of the date of these Orders, the [Council] must give notice to each owner of a lot in Strata Plan 88309 of these proceedings and such notice is to be given in the form of the letter attached to these Orders. 4 Within 48 hours of the date of these Orders, the [Council] must give notice to each occupier of a lot in Strata Plan 88309 of these proceedings and such notice is to be given in the form of the letter attached to these Orders. 5 The [Council] must serve a letter addressed to each lot owner, the subject of Order 3, by ordinary post: (a) To the addresses identified in the document annexed and marked "A" to the affidavit of Mr Todd Cowan sworn 2 May 2014; and (b) Care of the strata managing agent, O'Connor Strata and Property Specialists Pty Limited ... 6 The [Council] must serve a letter addressed to each occupier the subject of Order 4 by placing the letter in the letterbox of the occupier at the Property." I shall refer to the letter later in these reasons.

The Jurisdiction to Make Representative Orders 12In Ahmed v Chowdhury [2012] NSWSC 1452, Lindsay J considered whether the Supreme Court has jurisdiction to make a representative order notwithstanding the repeal of Uniform Civil Procedure Rules 2005 (UCPR) r 7.4. That rule, which provided expressly for representative orders in proceedings in which numerous persons had the same interest or the same liability, was repealed in 2010. Detailed provisions governing representative proceedings, modelled on Part IVA of the Federal Court of Australia Act 1976 (Cth), were then introduced in New South Wales as Part 10 of the Civil Procedure Act 2005 (NSW): see Ahmed v Chowdhury at [32]. The statutory procedure is of no assistance in the present case, since the legislation only permits the commencement of proceedings by a representative party. 13UCPR 7.4 followed the pattern of English rules of court dating from the merger of law and equity effected by the Supreme Court of Judicature Act 1873 (UK), which were modelled on the practice of the Court of Chancery. Prior to the introduction of rules providing for the making of representative orders, common law courts had no power to make representative orders: Carnie v Esanda Finance Corporation [1995] HCA 9; 182 CLR 398 at 415 (Toohey and Gaudron JJ, Mason CJ, Deane and Dawson JJ agreeing). Thus the introduction of rules of this kind enabled courts to make representative orders in proceedings other than those that would have been determined by the Court of Chancery. In Ahmed v Chowdhury, Lindsay J concluded that the "traditional equity jurisdiction" to make representative orders was not affected by the repeal of r 7.4. In his view, s 22 of the Supreme Court Act 1970 (NSW), which continues the Court "as formerly established as the superior court of record in New South Wales", preserves the jurisdiction of the Court derived from the Court of Chancery (at [36]). His Honour identified s 16 of the Civil Procedure Act 2005 (NSW), which authorises the Court to give directions "with respect to any aspect of practice or procedure for which rules of court or practice notes do not provide", as an alternative source of continuing power for the Court to make representative orders in civil proceedings (at [37]). 14Lindsay J noted (at [39]) that equity regarded the principles governing the making of representative orders as "rules of convenience adapted to particular facts for the due administration of justice". Accordingly, in his view, it remains open to the Court to make a representative order in proceedings for the determination of the collective rights and liabilities of members of an association as between themselves (at [38]). 15Mr Hale relied on Lindsay J's analysis to support his contention that representative orders should be made in the present case. I did not understand Mr Tomasetti to contend that Ahmed v Chowdhury should not be followed insofar as it decides that the Court retains jurisdiction and power, notwithstanding the repeal of UCPR r 7.4, to make representative orders. In any event, I think that Lindsay J was correct to conclude that the Court continues to have the power to order that a party be appointed to represent a group of persons who are necessary parties to litigation, where it is in the interests of justice to do so. 16In addition to the sources of power identified by Lindsay J, the provisions of Part 6 of the Civil Procedure Act are important. Section 58 of the Civil Procedure Act provides as follows: "(1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: ... (iii) any other order of a procedural nature, and ... (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57 ..." 17Section 56(1) states that the overriding purpose of the Act and the rules of court, in their application to civil proceedings, is to facilitate the just, cheap and quick resolution of the real issues in the proceedings. Section 57 identifies the objects of case management: "(1) For the purpose of furthering the overriding purpose referred to in section 56(1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1)." 18It would be very strange indeed if this Court lacks power to make a representative order in proceedings in circumstances where such an order is necessary to achieve the objectives stated in ss 56 and 57 of the Civil Procedure Act. There may be a question as to the residual authority of the Court to make representative orders in circumstances covered by Part 10 of the Civil Procedure Act, which establishes an elaborate regime for the institution and conduct of representative proceedings. But Part 10 does not cover the field. For example, following the repeal of UCPR r 7.4, it appears there is no legislation or rule of court of general application in New South Wales which specifically empowers the Court to make an order that a defendant be appointed to represent persons who have the same interest and are necessary parties to the litigation. (UCPR r 7.6 provides for representative orders in proceedings concerning the administration of a deceased estate, property the subject of a trust or the construction of an Act, instrument or other document.) In the absence of such a general provision, ss 56-58 of the Civil Procedure Act provide a source of authority to make an order that one or more defendants (or respondents to an appeal) represent other persons with a common interest in the proceedings.

The Chancery Practice 19The principles governing representative orders in the Court of Chancery are readily capable of adaptation to modern litigation. In Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41; 229 CLR 386, Gummow, Hayne and Crennan JJ explained (at [43]) that the former Chancery practice was governed by two principles: "The first was that all persons materially interested in the subject matter of the suit ought generally to be made parties so as to settle the controversy by binding to the final decree those interested. The second principle was that, in observing the first, care was required to avoid embracing in the proceedings parties with an insufficient interest and thereby risking a demurrer on the ground of multifariousness. These questions of parties were determined 'upon considerations of convenience with regard to the circumstances of each particular case'." (Citations omitted.) See also Edge; Re Eco Panels Australasia Pty Ltd (in liq) [2007] FCA 30; 61 ACSR 139 at [6]-[11] (Finkelstein J). 20The classic statement of Chancery practice is that of Lord Macnaghten in Duke of Bedford v Ellis [1901] AC 1 at 8: "Under the old practice the Court required the presence of all parties interested in the matter in suit, in order that a final end might be made of the controversy. But when the parties were so numerous that you never could 'come at justice', to use an expression in one of the older cases, if everybody interested was made a party, the rule was not allowed to stand in the way. It was originally a rule of convenience: for the sake of convenience it was relaxed. Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent." Lord Macnaghten referred to pre-Judicature Act authorities, such as the judgments of Lord Eldon in Adair v New River Co (1805) 11 Ves 429; 32 ER 1153 and Cockburn v Thompson (1809) 16 Ves 321; 33 ER 1005, for the proposition that equity took a broad and liberal view of the availability of representative orders, the concern being to ensure that justice was done and not denied by procedural rules.

Should Orders Be Made? 21Having regard both to the principles developed by the Court of Chancery and the terms of ss 56-58 of the Civil Procedure Act, in my opinion it is open to the Court to make a representative order if: ● the party seeking the order shows that a class of necessary parties is so numerous that it is not reasonably practicable to join them in the proceedings unless a representative order is made; ● the representative party and the represented class have a common interest in the proceedings; ● the proceedings raise a substantial common issue of law or fact affecting the representative party and all members of the represented group; and ● it is in the interests of justice and consistent with the overriding purpose stated in s 56(1) of the Civil Procedure Act that the order should be made. 22I do not intend these propositions to be an exhaustive statement of the principles governing the making of representative orders otherwise than under statute or rules of court. For example, the existence of a substantial common issue of law or fact is a requirement for the commencement of representative procedures under Part 10 of the Civil Procedure Act (s 157(1)(c)), but it may not always be necessary to identify such an issue before a representative order is made. Thus in Duke of Bedford v Ellis, Lord Macnaghten said (at 8) that under the old Chancery practice: "Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent." 23The Chancery practice also extended to the making of an order for a defendant to represent a class of person having the same interest in the proceedings: see the authorities cited in Ahmed v Chowdhury at [42]-[43]. The rule considered in Carnie v Esanda (Supreme Court Rules 1970 (NSW) Pt 8 r 13(1)) merely required that numerous persons had "the same interest in any proceedings". 24I would also accept the observations of Megarry J in John v Rees [1970] Ch 345. In that case, which concerned a plaintiff suing on his own behalf and on behalf of all other members of an unincorporated political party, his Lordship said (at 371): "Although there is thus a clear common interest between all the members in having the issue determined, they may be far from united in the way in which they wish it to be resolved. Some may support one faction, some another. But if the named parties to the action together put forward every view that is seriously advanced, I cannot see that any real harm is done to a person whose part in the action is merely that he is represented by the plaintiff, even if the plaintiff is supporting a different cause, provided that there is a defendant who does stand for the cause espoused by the person being represented: actions are decided by reference to justice according to law, and not by counting heads. The remedy for someone who is not consoled by this thought is ... for him to apply to be joined as a defendant. Alternatively, he may be able to procure an order ... whereby he will be represented by a defendant. ... It seems to me that the important thing is to have before the court, either in person or by representation, all who will be affected: and provided that the issue will be fairly argued out, a mathematical precision in securing that each side is shown as representing the right number of supporters is of little moment." (Citations omitted) 25Megarry J was considering a rule similar to the now repealed UCPR r 7.4, but he interpreted it to conform to the flexibility inherent in the Chancery practice. His observations were applied by Kaye J in Clark v University of Melbourne [1978] VR 457 at 477, a case in which his Honour appointed three members of the Students' Representative Council (who were named as defendants) to represent the executive and all members of the body other than the plaintiff. 26In the present case, the requirements I have identified are satisfied. The class of necessary parties is large. It would be extremely difficult for the Council to join over three hundred individual lot owners and occupiers as parties to the proceedings and to serve them in accordance with the rules of court. Among other things, the evidence shows that a number of the lot owners have not listed a personal address on the strata roll, and insisted use of a post office box or rely on a real estate agent to receive correspondence. I infer that some of the lot owners reside outside Australia. 27I accept that the Council should have adverted to the requirement that all necessary parties should be joined much earlier than it did. Nonetheless, unless representative orders are now made, there is a real risk that the Council's right of appeal would be stultified because of the procedural obstacles that would have to be overcome in ensuring that all necessary parties are joined. At the very least, there would be further significant delays, substantial inconvenience and additional expense. 28The form of orders proposed by the Council describes two classes of lot owners and occupiers, each of which has a common interest in the proceedings. Some lot owners and occupiers no doubt will be indifferent to the outcome. However, I agree with Lindsay J's comment in Ahmed v Chowdhury at [55], that there is no need to carve out an exception for those who are indifferent to the outcome of the proceedings. The important point is to ensure that the interests of those who support a particular outcome are adequately represented on the appeal. 29Similarly, there may be some lot owners and occupiers who generally support the Council's position or Ralan's position, but disagree on some aspects of the arguments that each might advance. As Megarry J pointed out in John v Rees, the remedy for such a person is to seek leave to be separately joined as a party, or to be permitted to make submissions on the issues of concern. The object of the orders is to ensure that all necessary parties are before the Court and that the proceedings are conducted fairly and efficiently. 30To the extent identification of a substantial common issue of law or fact is necessary, that requirement is also satisfied. The question common to the parties and the putative represented groups is whether Ralan breached the terms of the Council's development consent in constructing the buildings on the Property. It is necessary to answer that question in order to resolve the proceedings, although the answer will not of itself necessarily be decisive. 31I am conscious that the orders proposed by the Council include an order that the Council be appointed to represent the owners and occupiers of lots in the Strata Plan who support the making of the orders. The Council was the applicant in the Land and Environment Court, but made no application to join lot owners or occupiers as parties to the proceedings. Any such application could not have been made under Part 10 of the Civil Procedure Act, since it would appear that representative proceedings pursuant to Part 10 can only be commenced in the Supreme Court. (Part 10 is headed "Representative Proceedings in Supreme Court" and "Court" is defined in s 155 to mean the Supreme Court.) Thus the Council's claim in the Land and Environment Court for declaratory relief and for an order requiring Ralan to carry out the Morrish Changes could not have been constituted as representative proceedings under Part 10. In these circumstances I do not think that the provisions of Part 10 preclude the making of representative orders at this stage of the litigation. 32Finally, the proposed orders seem to me to adequately accommodate the need to inform lot owners and occupiers of the nature of the appeal and of their entitlement to seek leave to be joined separately as parties or to make submissions to the Court. The orders contemplate that a letter will be sent to each lot owner and occupier informing them of the appeal and of the representative orders that have been made. The letter that is to be sent to the owners and occupiers is annexed to this judgment. 33The letter was originally drafted by the Council's legal representatives. I substantially revised the draft letter to ensure, so far as possible, not only that it is accurate but that it is not calculated to cause unnecessary anxiety or concern among the recipients. Lawyers can sometimes underestimate the impact of a formal legal letter, no matter how innocuous it is intended to be, on a lay recipient. The final version reflects some of the parties' comments on the revised draft, although I have not incorporated all their comments.

Orders 34I propose to make orders substantially to the effect of those set out at [11] above. The letter attached to the Orders is the Annexure to this judgment. In addition, I propose to direct that any person wishing to apply for leave to be joined as a party to the appeal or for leave to make submissions on the appeal is to file and serve a motion and supporting affidavit on or before 27 June 2014.

ANNEXURE [INSERT HOUSTON DEARN O'CONNOR LETTERHEAD] [INSERT DATE] [INSERT NAME] [INSERT ADDRESS] [INSERT ADDRESS] Dear Sir/Madam Re: Burwood Council v Ralan Burwood Pty Limited & Ors Property: 1 - Railway Parade, Burwood NSW Court of Appeal Proceedings No. 2013/339576 We are the solicitors acting for Burwood Council in NSW Court of Appeal Proceedings No. 2103/339576. The appeal follows a decision of the Land and Environment Court in Burwood Council v Ralan Burwood Pty Limited & Ors [2013] NSWLEC 173. The judgment can be accessed at www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=167678. We have been directed by the NSW Court of Appeal to write this letter to all owners and occupiers of the above Property. This has been done to advise you of the appeal and to give you an outline of what the appeal is about. The Court also wishes to give owners and occupiers the opportunity to participate in the proceedings if they desire to do so. Burwood Council (Council) commenced the court proceedings against the developer of the Property, Ralan Burwood Pty Ltd (Ralan) alleging amongst other things, that Ralan was in breach of the Environmental Planning and Assessment Act 1979 in that it: 1. carried out the development of the Property contrary to the development consent that had been granted in respect of the Property; and 2. commenced the erection of certain identified stages of the building, without a valid construction certificate. The Land and Environment Court dismissed the proceedings. The Council's appeal was listed for hearing but the NSW Court of Appeal did not proceed with the hearing in order to ensure that all persons with an interest in the appeal have an opportunity to put their case, should they wish to do so. In the appeal, the Council seeks various orders requiring Ralan to carry out works to the exterior of the building on the Property. The Council's case is that the external appearance of the building is not in accordance with what was approved, and that in order to address those concerns, various works need to be carried out. These include the erection of aluminium louvres and making changes to the window panelling of the building. The proposed louvres are only on parts of the East and West elevations of the 3 towers. Ralan's case is that the building has been lawfully erected, the development is complete and no further work is required. We enclose a copy of the plans showing the works proposed by the Council and prepared by the Council's urban design consultant, Ms Gabrielle Morrish. The Council is only seeking orders that require Ralan to undertake works to the common property. All lot owners have an interest in the common property. However, the evidence in the case suggests that the proposed works might have a differential impact on the property and amenity including views and sunlight access of individual lot owners and occupiers. If the works are to be carried out, it might be necessary, for example, for workers to gain temporary internal access to some units to affix external aluminium louvres across windows. In some cases, it might be necessary to remove and replace fixtures and fittings located near glass and window panelling. The orders the Council are seeking, if they are made, will not necessarily require any individual lot owners or occupiers to permit any work to be carried out inside individual units. But Ralan claims that it is entitled, under either contractual arrangements or a covenant over each strata title, to gain access to individual units to carry out any works to the common property ordered by the Court. The Court is not being asked in these proceedings to decide whether Ralan has this right against each individual lot owner. That is a separate issue. But if the Council obtains orders against Ralan requiring it to carry out the rectification works, Ralan may seek to rely on its rights against individual lot owners or occupiers to enable it to carry out the works. The NSW Court of Appeal has made orders that are intended to ensure that lot owners and occupiers who support or oppose the making of the orders sought by Council are represented by the existing parties to the proceedings. The judgment in which the orders were made (Burwood Council v Ralan Burwood Pty Ltd [2014] NSWCA 179) can be accessed at http://www.caselaw.nsw.gov.au/appeal/index.html. The orders are as follows: 1. All owners and occupiers who support the making of the orders for the rectification works sought by the Council will be represented in the proceedings by the Council; 2. All owners and occupiers who do not support the making of the orders for the rectification works sought by the Council will be represented in the proceedings by Ralan. The effect of the representative orders is to make lot owners and occupiers parties in the proceedings. However it is important to stress two matters: 1. Lot owners and occupiers in their capacity as represented parties are not liable for the costs of the proceedings. 2. The orders do not prevent any lot owner or occupier or group of lot owners or occupiers who wish to be separately represented on the appeal from applying to the Court of Appeal for leave to be joined as a party to the appeal or simply to make submissions to the Court of Appeal. For example, there may be individual lot owners who wish to argue that some, but not all the rectification work should be carried out. The Court has directed that any application to the Court of Appeal for leave to be joined as a party to the appeal or for leave to make submissions to the Court of Appeal should be filed and served before 27 June 2014. If you wish to discuss the matter with the solicitor for the Council, the person to contact is Mr T O'Connor of Houston Dearn O'Connor on 9744-9247 or by email to tim@hdo.com.au. If you wish to discuss the matter with the solicitors for Ralan, the person to contact is Mr Chris Gough of Storey & Gough at 9630-2361 or by email to chrisgough@sglaw.com.au. Yours faithfully Houston Dearn O'Connor

Amendments 18 June 2014 - Pursuant to the slip rule "(No 2)" has been added to the title of the judgment. Amended paragraphs: Coversheet 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: 18 June 2014