City of Ryde Council v Wood

Commencement of these Class 4 proceedings

1. On 21 July 2020, the Council commenced these Class 4 proceedings against both Mr Wood and the Company.
2. On 5 August 2020, Mr Wood's legal representatives filed a submitting appearance except as to costs in these Class 4 proceedings.

A Statement of Agreed Facts

1. A Statement of Agreed Facts (reflecting an agreed position between the Council and the Company) was tendered, becoming Exhibit A. That document was in the following terms: The Land 1 The land at Lot 8 in DP 1811 and known as 257-259 Pittwater Road, North Ryde (Land) is within the Council's local government area. 2 The Land adjoins the Council owned Boobajool Reserve on its south and east boundaries which is heavily vegetated. 3 At all material times the Land was identified on the Council's Bushfire Prone Land Map as designated bush fire prone land and classified as Bushfire Attack Level - Flame Zone (BAL-FZ). 4 For dwelling houses to be erected in BAL-FZ zones certain standards apply including those in AS3959-2018 Construction of Buildings in bushfire-prone areas and Section 7.5 of Planning for Bush Fire Protection 2019 (Standards). The CDC 5 On or about 1 September 2017 the first respondent issued Complying Development Certificate number NW17/2234 for the construction of a new two storey dwelling house and garage (Dwelling) on the Land (CDC). 6 On or about 17 September 2017 the applicant received a copy of the CDC from the respondent. 7 The second respondent was not involved in the issue of the CDC. The CDC was issued to the prior owner and the second respondent became the owner of the Land on or about 28 September 2018. 8 By virtue of the facts stated at paragraphs 3 and 4, the development the subject of the CDC was not complying development and therefore the first respondent did not have jurisdiction to issue the CDC. The Dwelling purportedly approved by the CDC does not comply with the Standards. The Dwelling was erected 9 During the period between September 2018 and October 2019, the second respondent carried out construction of the Dwelling in reliance on the CDC. The applicant was aware that construction works were being carried out during this period. 10 The Dwelling as erected does not comply with the Standards. 11 By 9 August 2019 the construction of the Dwelling was nearing completion. The first respondent became aware of the BAL-FZ classification of the Land and on or about that date issued a Notice of Intention to Issue an Order to cease work in reliance on the CDC. The Dwelling was Occupied 12 On 22 October 2019 the first respondent advised Council he would not issue an occupation certificate for the Dwelling and no occupation certificate has been issued for the development. 13 In October 2019, the Council wrote to the second respondent requesting that it provide an undertaking to not occupy the Dwelling, and to surrender the CDC. No undertaking was provided, and the CDC was not surrendered. 14 At a time prior to 6 May 2020 the sole director of the second respondent and his family entered into occupation of the Dwelling. 15 On 21 July 2020 these proceedings were commenced. 16 The occupation of the Dwelling continued until on or about 17 September 2020 when the second respondent through its legal representatives provided an undertaking to the Council that it would not occupy the building on the Land "until such time as an occupation or building certificate is issued." A Development Application and Building Information Certificate Application has been made 17 On or about 5 May 2020, the second respondent submitted a development application (DA) for alterations and additions to the Dwelling for the purpose of carrying out works to make the building compliant with the bushfire controls applicable to the Land. A Building Information Certificate application was also submitted to Council for the building work that has been carried out to date. 18 At the time proceedings were commenced by the applicant: a. the CDC had not been surrendered by the second respondent; b. the second respondent's DA and application for a Building Information Certificate had not been determined; and c. the first respondent had not accepted liability, nor provided an indemnity for, the second respondent's losses arising from the fist respondent's breach of the Environmental Planning and Assessment Act 1979 by issuing the CDC (such losses which will include the costs of complying with the relief sought by the applicant and consequential loss). Events since commencement of proceedings 19 The Summons originally filed in these proceedings, at prayer 4(a), sought an order that the second respondent: a. within a period of 14 days from the date of these orders, engage an appropriately qualified fire safety engineer (Engineer) to prepare a report setting out what works (Works), including a detailed specification therefor, are required to ensure that the dwelling erected on the land complies with the AS 3959 2009, for Bushfire Attack Level - Flame Zone (the Report); 20 Between August and September 2020, the second respondent engaged an accredited fire safety engineer and a Level 3 Bushfire Planning and Design (BPAD) recognised practitioner) to provide bushfire risk advice. 21 Between October and November 2020, the second respondent's accredited fire safety engineer provided a schedule of the works which, in his opinion, were required to bring the Dwelling into compliance with the Standards, together with a detailed specification therefor, and those documents were lodged as an amendment to the DA. 22 In January 2021, the applicant notified the second respondent that the applicant's fire safety engineer would not support the works proposed by the second respondent's fire safety engineer. 23 On 22 March 2021, the applicant's and the second respondent's respective fire safety engineers met with a view to finalising the specification for the works required to bring the Building into compliance with the Standards. 24 Since that time, the applicant's and the second respondent's respective fire safety engineers have been in continued discussions as to the works required to bring the Dwelling into compliance with the Standards and, recently, the applicant's fire safety engineer nominated a finite list of matters to be addressed in that regard and the second respondent's fire safety has responded to those matters in support of the pending DA and application for Building Information Certificate. Both the second respondent's DA and application for Building Information Certificate are currently being assessed by the applicant. 25 On 2 August 2021, the applicant issued an Amended Summons. The second respondent's claim against the first respondent 26 On 16 September 2020, the second respondent wrote to the first respondent seeking that the first respondent provide a full indemnity for all loss and damage incurred by the second respondent as a result of the complying development certificate being issued invalidly. The first respondent has not provided such an indemnity. 27 On 13 April 2021, the second respondent commenced proceedings in the Supreme Court against the first respondent seeking damages arising from the breach of the Environmental Planning & Assessment Act 1979 in relation to the issuing of CDC.

The Consent Orders addressing the substantive issues

1. On 20 August 2021, at a hearing before me as Duty Judge, the legal representatives of the Company and the Council proposed that I should make Consent Orders disposing of the proceedings. On the basis of the Statement of Agreed Facts (agreed between the Council and the Company), together with affidavit evidence read on that occasion, I was satisfied that it was appropriate to make the Consent Orders proposed by the Council and the Company that had the effect of disposing of the substantive issues in the proceedings, but deferring the question of the costs of the proceedings to a subsequent hearing.

A costs hearing

1. On 2 December 2021, a costs hearing took place before me. At the conclusion of that hearing, I reserved my decision. This judgment addresses the questions of where, and to what extent, the costs' burden of these Class 4 proceedings should fall.

Representation

1. At the costs hearing on 2 December 2021, Mr M Astill, barrister, represented the Council. Mr Astill had also represented the Council at the hearing on 20 August 2021 where the substantive elements of the proceedings had been disposed of by the Consent Orders made on that day. Mr J Doyle, barrister, represented the Company. Mr Doyle had, similarly, appeared before me on 20 August 2021. Mr Wood was represented at the costs hearing by Mr T March, barrister.

The costs hearing

1. The costs hearing was conducted in person (save that Mr Elek attended by audio-visual link as his vaccination status did not satisfy the requirements of the Court's COVID‑19 pandemic policy requiring that those attending court hearings in person needed to be fully vaccinated). All three advocates provided helpful written submissions ensuring that, despite the nature of the contest concerning where the costs' burden should fall was not a simple one, the hearing was completed in less than a day.

The written submissions

1. Written submissions had been provided for the purposes of the hearing in August 2021, which had resulted in the orders disposing of the substantive elements of the proceedings. The written submissions for that hearing provided by Mr Astill and Mr Doyle had each dealt with the issue of costs but had done so in a circumscribed fashion, given that consideration of what costs orders would be appropriate to be made would require participation by Mr Wood's legal representatives on a subsequent occasion.
2. For the purposes of costs' issues addressed by this judgment, I have had regard to the elements of the submissions for the August 2021 hearing that addressed the costs issue.
3. For the purposes of the costs hearing on 2 December 2021, further detailed written submissions were provided to which I also have had regard.

The evidence

1. The affidavit evidence for the Council comprised:

• Affidavits of Ms Belinda Lennox, Council's solicitor, of 6 and 11 August 2021. These affidavits were read on 2 December 2021;
• An affidavit of Ms Lorelle Mainsbridge, Team Leader of the Council's Building Certification Team, of 2 July 2020. This affidavit had been read on 20 August 2021 as to paragraphs 1 to 6 and incorporated documents;
• An affidavit of Mr Stuart McMonnies, Bushfire Expert, of 31 July 2021. This affidavit, addressing bushfire attack levels, had been read on 20 August 2021; and
• An affidavit of Ms Madeline Thomas, the Council's Senior Coordinator (Development Assessment), of 18 August 2021. This affidavit was read on 2 December 2021.

1. The affidavit evidence for Mr Wood comprised:

• An affidavit of Mr Alexander Doley, solicitor of 17 August 2021. This affidavit was read on 2 December 2021.

1. The affidavit evidence for the Company comprised:

• An affidavit of 16 August 2021 of Mr Doron Levy, Fire Safety Engineer, containing a Bushfire Hazard Assessment Report. This affidavit was read on 2 December 2021; and
• Affidavits of Mr Ivan Elek of 16 and 19 August 2021. These affidavits were read on 2 December 2021.

1. Various documents were also tendered. It is not necessary to list them.

Introduction

1. A number of provisions of the Environmental Planning and Assessment Act 1979 (the EPA Act) are of relevance in these proceedings, as is a provision of the Civil Procedure Act 2005 (the Civil Procedure Act), being the provision concerning the awarding of costs. In addition, r 42.1 of the Uniform Civil Procedure Rules 2005 (the UCPR), concerning costs, also requires to be considered.

The EPA Act provisions

1. Several provisions of the EPA Act are appropriate to be noted but it is unnecessary to detail them. First, the Act establishes a regime whereby a person seeking to carry out building works which do not fall within the operation of the beneficial provisions of the SEPP can be approved by the making of a development application to the relevant local consent authority (here, the Council). The second element of the Act that is to be noted is that it also creates a regime that permits a local consent authority to issue a Building Information Certificate where a person has carried out works for which consent was required, but without having the necessary consent to do so. Granting a Building Information Certificate does not award retrospective development consent for the unauthorised works but does provide a protective regime permitting the ongoing use of those works. For present purposes, it is sufficient to note the existence of these two processes and it is not necessary to engage with the detail of them.
2. However, the EPA Act also contains a civil enforcement provision permitting proceedings to be brought in this Court to remedy or restrain a breach of the Act, including breaches which relate to the undertaking of works for which development consent is required, where such consent has not been sought and obtained. This provision, s 9.45(1), is in the following terms: 9.45 Restraint etc of breaches of this Act (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.
3. The powers of the Court that are engaged if such a breach is established are contained in s 9.46, a provision in the following terms: 9.46 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may - (a) where the breach of this Act comprises a use of any building, work or land - restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work, or (c) …
4. It is pursuant to the first of the above provisions that the Council commenced these Class 4 proceedings against Mr Wood and the Company. It was pursuant to the second of the above provisions that the orders later set out, at [33], were made on 20 August 2021 that resolved the substantive issues in dispute in these Class 4 proceedings.

The Civil Procedure Act provision

1. The broad power concerning the awarding of costs in proceedings such as these (together with the discretions given in that regard) are contained in s 98 of the Civil Procedure Act. This provision is in the following terms: 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act - (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) … (2) … (3) … (4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to - (a) …, or (b) …, or (c) a specified gross sum instead of assessed costs, or (d) … (5) … (6) …

The UCPR rule

1. The UCPR contains, relevantly, a rule establishing that, in litigation such as these Class 4 proceedings, costs will usually "follow the event". Although, as later discussed, there is some dispute as to what might constitute "the event" in the overall scheme of this litigation, it is presently sufficient to set out r 42.1, it being in the following terms: 42.1 General rule that costs follow the event Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

The SEPP

1. As earlier noted, the dwelling which had been constructed on the site by the Company had been approved by the CDC issued by Mr Wood purporting to grant approval for the construction of that dwelling. This approval was purportedly granted pursuant to the SEPP, a beneficial and facultative environmental planning instrument that has, relevantly in this instance, the potential for a simplified approval system for the construction of development (including, in some circumstances, dwellings) where the greater regulatory scrutiny arising through the development application process is not considered necessary.
2. For present purposes, it is sufficient to note that proposed dwellings, where there is a significant potential bushfire risk (as is here the case with the dwelling constructed by the Company), are not capable of being approved through the processes established by the SEPP but require the higher level of scrutiny that would arise from the lodgement of a development application with, and its assessment by, a local council as consent authority.

Introduction

1. As earlier indicated, the Council commenced these Class 4 proceedings on 21 July 2020. The Council was subsequently granted leave to rely on an Amended Summons. On 20 August 2021, the substantive matters in dispute were disposed of by virtue of the Consent Orders made on that occasion. Details concerning each of these three steps in the proceedings arise for examination for this costs' determination.

The original Summons

1. The Summons filed for the Council commencing these Class 4 proceedings sought substantive relief in the following terms: ORDERS SOUGHT 1 A declaration that the Complying Development Certificate number NW17/2234 dated 1 September 2017 and purportedly issued by the first respondent Robert Wood (CDC) in relation to the premises at Lot 8 in DP 1811 and known as 257-259 Pittwater Road, North Ryde (Land) for the erection of a two storey dwelling and garage is invalid and of no effect. 2 A declaration that the works, including the erection of a two storey dwelling and garage, carried out by the second respondent on the Land purportedly pursuant to the CDC required development consent pursuant to Ryde Local Environmental Plan 2014, and section 4.2 of the Environmental Planning and Assessment Act 1979 (Act) but were carried out without that consent. 3 An order that the dwelling on the Land not be occupied in each year during the months declared for that year by the NSW Government to be bushfire season until and unless the certification required by order 4 (c) has been provided. 4 An order that the second respondent: a. within a period of 14 days from the date of these orders, engage an appropriately qualified fire safety engineer (Engineer) to prepare a report setting out what works (Works), including a detailed specification therefor, are required to ensure that the dwelling erected on the land complies with the AS 3959 2009 for Bushfire Attack Level - Flame Zone (the Report); b. diligently seek to obtain the Report as soon as practicable, and in any event within one calendar month of the date of these orders; c. within a period of three months from the date of receipt of the Report: i. cause the Works to be carried out and completed; and ii. provide to the Applicant written certification by the Engineer that the Works have been satisfactorily completed and that the dwelling complies with AS 3959 2009. 5 Order that the second respondent demolish and remove the unauthorised structure erected on the Land and restore the Land to the state in which it was prior to the carrying out of the unauthorised works. 6 Order 5 is: a. suspended for as long as the second respondent complies with all parts of Order 4 within the relevant time set out for that part, and b. discharged upon provision of the certification required by order 4(c).

The Amended Summons

1. The terms of the substantive relief sought by the Council in the Amended Summons differed substantially from that which was sought as set out above. The relief sought in the Amended Summons was in the following terms: ORDERS SOUGHT 1 A declaration that the Complying Development Certificate number NW17/2234 dated 1 September 2017 and purportedly issued by the first respondent Robert Wood (CDC) in relation to the premises at Lot 8 in DP 1811 and known as 257-259 Pittwater Road, North Ryde (Land) for the erection of a two storey dwelling and garage is invalid and of no effect. 2 A declaration that the works, including the erection of a two storey dwelling and garage, carried out by the second respondent on the Land purportedly pursuant to the CDC required development consent -pursuant to Ryde Local Environmental Plan 2014, and section 4.2 of the Environmental Planning and Assessment Act 1979 (Act) but were carried out without that consent. 3 An order that the dwelling on the Land not be occupied in each year during the months declared for that year by the NSW Government to be bushfire season until and unless an occupation certificate has been issued for the dwelling. 4 Order that within six months of the date of this order the second respondent demolish and remove the unauthorised structure erected on the Land and restore the Land to the state in which it was prior to the carrying out of the unauthorised works. 5 An order that the second respondent: a. within a period of two months from the date of these orders obtain development consent for the carrying out of works required to ensure that the dwelling erected on the land complies with AS 3959 2018 Construction of Buildings in Bushfire Areas (the Works); and b. within a period of two months from the date of these orders obtain a Building Information Certificate for the dwelling house as constructed; and c. within a period of four months from the grant of development consent in order 4(a) carry out the Works in accordance with that consent. d. Within a period of one month after the date of the Works being completed, obtain an occupation certificate for the dwelling. 6 Order 5 is: a. suspended for as long as the second respondent complies with all parts of Order 5 within the relevant time set out for that part, and b. discharged upon provision of the certification required by order 5(d). 7 Liberty to apply to vary order 5 on 14 days' notice. 8 To the extent necessary, an order pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005 extending the time for the commencement of these proceedings. 9 An order that the first and second respondents pay the applicant's costs. 10 Such further order as the Court sees fit.

The August 2021 orders

1. The terms of the orders made by consent on 20 August 2021 disposing of the substantive issues in the proceedings varied significantly from the relief sought as pleaded on behalf of the Council in either the original Summons or in the Amended Summons. The terms of the orders made on 20 August 2021 were in the following terms: By consent, the Court makes the following orders and notations: 1 A declaration that the Complying Development Certificate number NW17/2234 dated 1 September 2017 and purportedly issued by the first respondent Robert Wood (CDC) in relation to the premises at Lot 8 in DP 1811 and known as 257-259 Pittwater Road, North Ryde (Land) for the erection of a two-storey dwelling and garage is invalid and of no effect. 2 A declaration that the works, including the erection of a two-storey dwelling and garage, carried out by the second respondent on the Land purportedly pursuant to the CDC required development consent pursuant to Ryde Local Environmental Plan 2014, and section 4.2 of the Environmental Planning and Assessment Act 1979 (Act) but were carried out without that consent. 3 An order that second respondent will not permit the dwelling on the Land to be occupied in each year during the period declared for that year by the NSW Government to be bushfire season unless and until an occupation certificate has first issued for the dwelling permitting such occupation 4 The second respondent undertakes to the Court that it will: a. Use its best endeavours to obtain, within a period of two months from the date of these orders, development consent for the- i. carrying out of works required to ensure that the dwelling erected on the land complies with the Standards contained in Planning for Bushfire Protection and AS 3959 2018 Construction of Buildings in Bushfire Areas (the Works), and ii. the use of the building; and b. If development consent is not obtained within that time to commence and diligently pursue a Class 1 appeal against Council's refusal; c. within a period of twelve months from the grant of development consent (whether from the Council or the Court) carry out the Works in accordance with that consent, and d. Within a period of one month after the date of Works being completed, apply for and diligently pursue the issue of an occupation certificate for the dwelling.

The Company's Supreme Court proceedings

1. The Company has commenced damages proceedings in the Supreme Court against Mr Wood. Although the pleadings in the Supreme Court proceedings apparently seek to recover rectification costs resulting from the need to make the dwelling on the site bushfire-compliant, it is sufficient for these purposes merely to note that such proceedings are on foot.
2. I understood from Mr Doyle's submissions that the Company would be seeking, through those Supreme Court proceedings, indemnification from Mr Wood for any costs incurred in these Class 4 proceedings. Whether or not such indemnification is sought, and what the prospects of success for the Company might be on that issue (or generally) in the Supreme Court proceedings, can play no role affecting the merits of the costs' determination I must make in these Class 4 proceedings.
3. However, as later discussed, the existence of the Supreme Court proceedings and the potential likely effluxion of time prior to their resolution do require consideration on the question of what period I might permit the Company to be allowed for the purposes of satisfying costs orders against it in favour of the Council.

The Council's position

1. Mr Astill submitted that, pursuant to r 42.1 of the UCPR, his client would ordinarily be entitled to its costs for the Class 4 proceedings. He proposed that, whilst both Respondents had argued why they respectively should not be responsible for certain portions of the costs, neither respondent had argued that the Council was not entitled to its costs or part thereof. Mr Astill submitted that the Council did not care how costs were apportioned, as long as it obtained an order for those costs.
2. In response to a question as to why the Council took nearly a year‑and‑a‑half to respond to Mr Elek's Building Information Certificate application, Mr Astill submitted that there were active discussions between the Council and Mr Elek as to the works required to be undertaken as a requisite for issuing the Building Information Certificate. He proposed that any deficiency in the application was not the Council's fault and that, in any case, this was not a central contested matter in the Class 4 proceedings, the central matter being the determination of the requisite rectification works. He further proposed that, as the Council had now granted a Building Information Certificate and development consent, there had been no real delay to the resolution of the matter.
3. Mr Astill submitted that this case was not a Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622 (Lai Qin) situation since there was a hearing on the merits and a curial determination. Mr Astill then advanced that it is doubtful that the Court would ever make declarations just because the parties had consented to it, especially where the declarations affect rights, such as a CDC. He relied on Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd [2009] FCA 960 and Lisarowraid Inc v Gosford City Council [2012] NSWLEC 232 in support of this proposition.
4. Mr Astill submitted that, in the context of Class 4 proceedings, and having regard to cases such as Kiama v Grant [2006] NSWLEC 96, there was no disentitling conduct by Council. He submitted that the Council was entirely justified in taking and pursuing the proceedings.
5. Regarding the timing of satisfaction of any costs order, Mr Astill submitted that the Council should not be prejudiced by a lengthy waiting period for its costs. However, the Council's instructions were that, although it would not agree to a 12-month deferral of any liability to pay costs, it would agree to a monthly payment plan. He submitted that this Court would have the power to apportion costs to be paid at periodic dates.
6. Mr Astill submitted that the Council had two general objectives during the proceedings:

• to dispose of the invalid CDC (either by Mr Elek's surrender or by order of this Court); and
• to obtain works to render the dwelling safe.

1. On the issue of the invalid CDC, Mr Astill submitted that the Council was effectively forced to litigate at a hearing because the Court would not make a declaration by consent. Mr Astill advanced that this was sufficient to put aside Lai Qin.

Mr Wood's position

1. Mr March submitted that it was appropriate to consider the question of costs with respect to before and after the date of the certifier's submitting appearance.
2. With respect to the time after the submitting appearance, he proposed that, whilst there was no prima facie rule that a submitting party would never be ordered to pay costs, cases such as Cutcliffe v Lithgow City Council (2006) 147 LGERA 330; [2006] NSWLEC 463 and Rossi v Living Choice Australia Ltd [2015] NSWCA 244 supported the position that, where an authority issuing an approval had filed a submitting appearance and there was subsequently a contested hearing between the applicant (here, the Council) and the beneficiary of the approval continuing to defend the proceedings (here, the Company), then the latter would ordinarily pay the applicant's costs. Mr March submitted that no orders should be made against his client in respect of time after its submitting appearance.
3. With respect to the time before the submitting appearance, Mr March accepted that, given the certifier had issued the invalid certificate, a costs order of some extent could ordinarily be made against it up to the date of entering the submitting appearance. However, Mr March submitted that the appropriate approach in this case was for the Company to bear costs up to the date of his client's submitting appearance, or at least split the costs with his client for that time period.
4. He proposed this because the Council had requested that the Company surrender the CDC and had sought an undertaking to that effect and, separately, had sought an undertaking that the premises not be occupied for safety reasons, proposals to which the Company did not agree. Mr March therefore submitted that the Company's conduct was the cause of the proceedings and the issuing of the development consent and building certificate could have been addressed out of court without the necessity for the proceedings.
5. Mr March also later made submissions in response to Mr Doyle's submission that any apportionment of costs should include consideration of work relating to the invalidity of the CDC that was ongoing after the date of the certifier's submitting appearance. Mr March said that this was contrary to Mr Doyle's repeated submission that the Company had never taken issue with the CDC's invalidity. Mr March further submitted that it would be, practically, very difficult for the parties to determine what, if any, time and cost was spent on the issue of the CDC's invalidity after the date his client filed its submitting appearance.
6. In summary, Mr March submitted that orders should not be made against his client in respect of the time after his submitting appearance was filed and that the Court's costs' discretion was broad enough to find that his client should not bear costs up to the filing of the submitting appearance either, accounting for the fact that the Company's conduct was the real reason why costs up to that point were incurred.
7. In the alternative (though not conceding that it was appropriate), Mr March submitted that his client should split, with the Company, the costs prior to the submitting appearance.

The Company's position

1. Mr Doyle submitted that the orders proposed in the Summons were not ones which were capable of being made, as development consent would be required prior to the carrying out of the rectification works which would result from the required fire‑risk investigations. He relied, in support of this proposition, on the decision of the Court of Appeal in Cando Management and Maintenance Pty Ltd v Cumberland Council [2019] NSWCA 26 (Cando), a decision where a proposed regime seeking to use orders of the Court to require ancillary works to be undertaken, could be used to regularise the construction of a block of townhouses where no certifier had been appointed; no construction certificate issued; and no occupation certificate could be obtained as a consequence.
2. He submitted that the Court of Appeal's rejection of such an approach had applicability to the orders sought by the Council in its initial Summons. As a consequence, he proposed that, as I understood him, the absence of a valid basis for the proceedings commenced by that Summons meant that, until leave was granted to the Council to rely on the Amended Summons, it was not appropriate to order costs against the Company for that period in the proceedings.
3. Mr Doyle made further submissions on two broad matters: 1. The validity of the complying development certificate (CDC); and 2. The proper exercise of the Court's discretion, specifically the appropriate orders that the Court should make where the CDC is found invalid.
4. Mr Doyle first submitted that the Company never denied the unlawfulness of the issuing of the CDC, nor defended its validity. Mr Doyle submitted that the responsibility for addressing the invalid CDC lay entirely with the certifier because the Company did not apply for, encourage, or have anything to do with issuing the certificate. He noted that the Company had filed its own proceeding pleading invalidity of the CDC in the Supreme Court.
5. He also referred to an initial submission dated 13 September 2019 by an earlier Bushfire Planning and Design (BPAD) qualified expert engaged by the Company (Mr Willis), which conceded that BAL 29 construction requirements were applied to the buildings in error. Nonetheless, Mr Doyle submitted that a CDC is a document with statutory effect, unless and until it is declared ineffective by a court of competent jurisdiction. Regarding the CDC in issue, Mr Doyle advanced that the Company relied upon the CDC's terms and did not breach legislation by carrying out the development certified by it. This is because: 1. The key function and content of the certificate was to certify that the work carried out is complying development; and 2. The certificate, by nature of being a certificate, could be relied upon on its face.
6. Mr Doyle then sought to distinguish the present facts from the cases relied upon by the other parties on the basis that the Company had openly conceded the unlawful issuing of the CDC throughout the proceedings.
7. He submitted that, in Platford v van Veenendaal and Shoalhaven City Council [2018] NSWLEC 27, an order was only made against the beneficiary of that consent because the Court had found that it played a role in obtaining the unlawful approval. He submitted that Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 3) [2020] NSWLEC 25 and Cutcliffe v Lithgow City Council [2006] NSWLEC 463 were factually distinguishable from the present matter for similar reasons. Furthermore, Mr Doyle put that, in any particular case on costs, different emphases may be placed upon different elements of the facts.
8. He proposed that the present matter is distinguishable from previous cases because certain facts "loom large": 1. The Company had bought the property after the CDC was issued; 2. Engaged a BPAD planner; and 3. Lodged a development application to remedy the situation before the proceedings were commenced.
9. This was the same result that had been the result achieved by the Council in the final relief. Mr Doyle put that there was no evidence to show Mr Elek was sophisticated in dealing with development consents, but had done "his best at all points along the way".
10. Mr Doyle advanced that, after matters regarding the CDC's invalidity were brought to Mr Elek's attention, he only undertook works on the driveway (which was dealt with under a separate approval and not the subject of any order) and minor works to secure the site. Mr Astill did not submit that Mr Elek continued to work on the dwelling after the invalidity of the CDC was drawn to his attention.
11. Mr Doyle proposed that the joint conferencing between the Council's bushfire expert and the Company's bushfire expert to achieve an agreed Schedule of Works was a cost which should not be encompassed within any costs order in the proceedings or, alternatively, that they were costs which should be encompassed within the proceedings but should be borne by the certifier.
12. In response to a question on why the failure to respond immediately and adequately to the fire rating compliance deficiency in the development should not lie with the Company, Mr Doyle submitted that there was no evidence that his client's response to the development's fire rating compliance deficiency was inadequate. He proposed that the only evidence was the Company's agreement to an alternative put to it by the Council.
13. Mr Doyle did not agree with the suggestion that the Company impliedly accepted that what it did was deficient when responding to the Council's allegations of deficiencies. He submitted that there was no admission that, if the matter had gone to trial and been contested, the determination would have been made in the Council's favour.
14. Mr Doyle submitted that his client had done precisely what the Council had sought at paragraph 4(a) in the original Summons, which requested that a qualified fire safety engineer be engaged to prepare a report setting out works required to rectify the dwelling's fire safety compliance, and carry out and complete those works within three months of receiving the report. He put that the Company had, at all relevant times, expressed a concern that it would be obliged to complete the works even though the Council might disagree with any proposed schedule of works arising from the fire safety investigations.
15. He advanced the proposition that the Company could not have submitted to the Summons because the relief it proposed, being completion of the building, could not have been ordered by the Court. He relied upon Cando to propose that the Court cannot order work to be done if development consent was required. Section 124(1) (now s 9.46(1)) of the EPA Act conferred a power to the Court to make orders restraining or remedying a breach of that Act. Mr Doyle submitted that if the relevant breach of the EPA Act was the carrying out of work without development consent, then it would be antithetical to the statutory power if the Court ordered further works to complete the same building without development consent, as it would sanction the completion of a building constructed in breach of the Act. Mr Doyle sought to distinguish Anastasiou v Wallace [2020] NSWLEC 14 (Anastasiou) on the basis that, in those proceedings, the orders for rectification of the relevant breach had already been made and therefore had to be adhered to.
16. Mr Doyle submitted that, for this matter, the proper course of action was to lodge a development application and have it assessed and approved, which was the relief that the Council ultimately sought in its Amended Summons.
17. Mr Doyle submitted that the proposition in Lai Qin should be extended to this case - that if the settlement is a recording by Consent Orders which is facilitated by an intervening event, then the Court will not conduct a hypothetical hearing to determine who would have won and lost. Mr Doyle advanced that Lai Qin was at least analogous to this case because Mr Boyce and Mr Levy were able to achieve an agreed schedule of works through a process, at least within the ambit of a development application, that was ultimately required. This meant the Court did not have to decide whether it would have required demolition of the building.
18. Mr Doyle next submitted that the earliest time at which the Council accepted that the matters must be resolved by reference to a development consent was when the Amended Summons was filed. He put that at no point until that time was there a claim for relief before the Court to which the Company could have submitted.
19. As a further issue, Mr Doyle submitted that the Company could not consent to the proposed order sought at paragraph 5(a) of the Amended Summons. The proposed order required that his client "within a period of two months from the date of these orders obtain development consent". Mr Doyle contended that his client could only have been ordered to apply for development consent, and not "obtain" it, because it is the Council that issues the consent. An equivalent argument was made with regard to paragraph 5(b) of the Amended Summons, which required the Company to "within a period of two months of these orders obtain a Building Information Certificate for the dwelling house as constructed".
20. In summary, Mr Doyle submitted that the proposed orders in paragraph 4 of the original Summons and paragraph 5 of the Amended Summons could not have been made as a matter of law. He proposed that, as a consequence, the question of whether demolition of the building could be ordered did not arise.
21. Mr Doyle then advanced that part of the reason why the Company took in excess of a year to resolve the bushfire safety issue was because of the need for agreement by both the Company's and Council's engineers as to the requisite rectification works. He submitted that the Company had been eager to agree a schedule of works in order to complete the dwelling as soon as possible and had not resisted any suggestion by the Council as to what works should be done.
22. Mr Doyle reiterated that it had always been the Company's preference to have matters in dispute resolved through a development application and to adjourn proceedings to allow that to occur. He contended that this was encouraged by s 9.46 of the EPA Act and was a way in which the proceedings could have been resolved consistent with what occurred in ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67.
23. When addressing the rule of "costs follow the event", Mr Doyle sought to separate the proceedings into distinct "events" based upon the issues. He proposed that the first "event" related to the validity of the CDC. He submitted that because the Company never contested the CDC's validity and because all work done on the issue did not go to resolving a controversy, the Company should not bear the costs on that issue through to when the orders were made. He advanced that the Company expressly submitted to orders on the issue in its response to the original Summons, and, at least from the time when the Company filed its response to the Amended Summons, two parties were submitting to that relief. He explained that the only reason the Company submitted to the orders at that point in time was because that was when it was directed to file a response by the Court. He submitted that his client could not have filed a submitting appearance to the original Summons because it contained injunctive relief that it could not agree to and that the Court would never have granted.
24. Mr Doyle reiterated that the Company lodged a development application before the proceedings had commenced, which remained pending thereafter. He advanced that when the Council informed the Company that its schedule of works was unacceptable, it did what the Council had sought the Court to order it to do. He submitted that, in the context of determining which party is responsible for costs, his client could not have capitulated later than it did in the proceedings. When the Summons had proposed choosing a fire safety engineer as an expert, the Company engaged that engineer and submitted a schedule, and the cause of delay was the difficulty involved with resolving a problem for which the Company bore no responsibility in creating. In summary, he submitted that his client was in fact the innocent victim of the CDC's invalidity and had endeavoured, throughout the litigation, to manage the problems placed upon it.
25. As an additional point, Mr Doyle raised the fact that there were Supreme Court proceedings on foot aimed at resolving disputes between the respondents, including as to Mr Wood's potential liability to the Company for legal and experts' costs. He proposed a stay pending determination of the Supreme Court proceedings, after which apportionment would be determined. He proposed that, as a costs order against the Company would be pursued in the Supreme Court against the Mr Wood, any costs order by this Court should not require payment to the Council until after the Supreme Court proceedings were finalised.
26. Mr Doyle also proposed the fact that Council filed its Amended Summons on short notice only after directions had been made for the final hearing was another factor to be accounted for when deciding whether some apportionment of costs was required.
27. He submitted that any costs accounting for Mr Wood's responsibility in issuing the invalid certificate should not be apportioned temporally so as to end when the submitting appearance was made. Mr Doyle advanced that there had been work done on the issue of the CDC's invalidity until the end of proceedings. He instead proposed that apportionment should be based on the amount of work taken up by a particular issue. In reply to Mr March's argument on the point, Mr Doyle also submitted that a relevant consideration was that presentation of evidence at a hearing was required in order to make a declaration that a certificate was invalid, and that hearing necessarily had to take place after the submitting appearance was filed.
28. Finally, in response to Mr Astill's submission concerning the Company's insistence on preserving the CDC, Mr Doyle submitted that the letter from the Company's solicitors to the Council's solicitors dated 9 September 2020 did not reveal a refusal to surrender the CDC. Rather, Mr Doyle submitted that the letter merely proposed two alternatives, one of which was to leave the CDC in place and address the failure to require works bringing the dwelling to the relevant bushfire standard, and the other was to obtain development consent if the CDC was set aside.

The Council's reply

1. Mr Astill first submitted that it is not true that the Company always tried to avoid controversy and the incurring of costs. He submitted that the Company was the only entity capable of surrendering the CDC and could have done so before proceedings commenced but refused to do so. After proceedings commenced, the Company continued to refuse to surrender the CDC in September and December 2020, as evidenced in letters from the Company's solicitors to the Council's solicitors. Mr Astill submitted that an attempt to get the CDC declared invalid in court, in the absence of a surrender, constituted a valid reason to commence these proceedings.
2. Mr Astill then submitted that the Council did not file the Amended Summons late and had always sought to achieve its two general objectives. Mr Astill advanced that, following lengthy negotiations, the Amended Summons was precipitated after Pepper J, who had been case managing the matter, fixed it for hearing.
3. Finally, Mr Astill relied upon his written submissions in response to Mr Doyle's submissions on the applicability of Cando and Anastasiou. Mr Astill submitted that this issue goes to what the form of orders would or could have been, which provokes a Lai Qin discussion that need not be entertained because there was ultimately no hearing on the merits, nor any curial determination of the matter.

Consideration of the costs' outcome

1. I turn, first, to Mr Doyle's proposition that Cando stood as a barrier to the validity of the Council's originating Summons providing a basis for a costs order against the Company until leave had been granted to rely on the Amended Summons. There are a number of reasons why Mr Doyle's submission in reliance on Cando should be rejected. In Anastasiou, Pain J gave careful consideration to the extent to which Cando could be regarded as placing barriers, as proposed by Mr Doyle would arise if development consent was required should the Court make orders to remedy a breach of the EPA Act (as is here the position), such an approach would be antithetical to the statutory scheme. Her Honour's reasoning, at [42] to [52], explain cogently why this is the position. These proceedings arise from the (now conceded) invalidity of the CDC and the necessity for works to remedy the inadequate bushfire protection measures required by the CDC rather than the complete absence of any basis upon which the Company's construction of the dwelling had proceeded.
2. Because there would have been a basis within power to consider whether or not the proposed works in the originating Summons might have been appropriate to be ordered, the formulation of the orders in the Summons cannot provide a basis for any limitation on the exercise of my costs' discretion in these proceedings.
3. Given that the originating Summons was subsequently replaced by the Amended Summons (which, in turn, was superseded by the orders of 20 August 2021), there can be no temptation to explore, contrary to Lai Qin, whether such orders might have been appropriate to be made. Mr Doyle's earlier‑noted concession that the remedies proposed in the Amended Summons would have given rise to issues of discretion as to the appropriateness of them being made (arising from the proposal that the time period for obtaining a development consent was, by imposing a burden on the Company where the Company had no control over how long obtaining such a consent would take) would have involved an impermissible hypothetical adjudication of that question.
4. In any event, the originating Summons and the Amended Summons were functionally overtaken, with the consent of the Company, as a consequence of the making of the Consent Orders on 20 August 2021, giving effect to the agreement between the Council and the Company as the active participants in the proceedings. That resolution, accepted by me as being appropriate under the circumstances, effectively rendered consideration of the path by which that resolution was reached a matter of irrelevance.
5. It was sufficient that the Company conceded that the CDC had been issued invalidly; the dwelling which the Company had constructed was non‑compliant with the relevant bushfire protection measures which should have been mandated; the Council had commenced proceedings to ensure that this occurred; and a regime embodied in the orders of the Court, finalising the substantive issues in dispute between the Council and the Company, had achieved the necessary public safety outcome arising in these circumstances.
6. As a consequence, the intermediate steps necessary to achieve that (steps which had never been challenged procedurally on behalf of the Company in the substantive phase of the proceedings) can play no part in my consideration of where the costs' burden of the proceedings should fall. Had the Company considered that either the Summons or the Amended Summons was defective in the fashion now proposed by Mr Doyle, the Company could have sought to challenge them prior to the making of the orders on 20 August 2021 disposing of the substantive issues in the proceedings.
7. That the Company did not choose to do so was an entirely available legitimate forensic path for it to choose, on advice, in seeking a practical resolution of the issues relating to the dwelling constructed pursuant to the invalid CDC. The forensic choices there involved, however, were ones which exclude the hypothetical matters now pressed by Mr Doyle as being relevant for present costs' consideration purposes.
8. There is, thus, no basis to depart from the general proposition that the costs of the proceedings should be met by the unsuccessful parties with the only issue arising being as to how those costs should be apportioned.

Introduction

1. I have earlier set out the terms of s 98 of the Civil Procedure Act, the provision establishing the general discretionary framework within which costs orders are to be considered. As can be seen from its terms, s 98(4)(c) permits the making of a gross sum costs order instead of leaving determination of the quantum of costs to either agreement between the parties or to the statutory assessment process. As I was concerned that the potential division of costs arising in these proceedings could potentially trigger complex and expensive costs assessment processes, I raised with the parties the potential for me to resolve the matter by making any orders effecting a costs' outcome as gross sum costs orders.
2. During the hearing, I indicated that, if I was minded to do so, any such order would be struck at somewhere within the band of 65% to 75% of the actual costs incurred by the Council, with the sum derived to be apportioned (if apportionment was necessary) in accordance with how I determined the costs' burden should fall. I invited the advocates to address me on the appropriateness of this approach. I also requested Mr Astill to obtain instructions as to what would be the actual amount of the Council's costs should I adopt this approach.

The quantum and breakdown of the Council's costs

1. Mr Astill sought instructions on what were the Council's costs of the proceedings, with these costs to be broken up into the various phases which had arisen. He was instructed that the Council's total costs from the commencement of the proceedings to the conclusion of the costs hearing would be $105,000. This sum, he indicated, on instructions, was to be broken up as follows:

• $10,000 up to the time when a submitting appearance was entered on behalf of Mr Wood;
• $80,000 from Mr Wood's submitting appearance up to and including the making of the orders on 20 August 2021 disposing of the substantive issues in the proceedings; and
• $15,000 from the making of those dispositive orders to the conclusion of the costs hearing.

The Council's position

1. Mr Astill indicated that the Council did not oppose me ordering that the costs' outcome should be on a gross sum basis. He submitted that the appropriate discounted rate for this purpose should involve a calculation at the upper end of the range which I had indicated, namely, at 75% of the Council's actual costs. He also observed that the Council was not concerned as to how costs might be apportioned between Mr Wood and the Company as the Council's sole concern was ensuring that the costs' outcome of the proceedings meant that the Council was appropriately reimbursed for the necessity to commence the proceedings.

The position for Mr Wood

1. Mr March submitted that, whilst his client did not oppose the proposition that the costs' outcome should be on a gross sum basis, the amount to be apportioned to his client, if that was to occur (he not conceding that any costs' attribution to his client was appropriate, however), should be at a discount rate of more than 30%.

The position for the Company

1. Mr Doyle also accepted, for the Company, that it would be appropriate for me to determine that the costs' outcome should be on a gross sum basis (however apportioned). He, too, submitted that the appropriate discounted rate for such calculation should be based on a discount rate of more than 30% of the Council's actual costs incurred.

Introduction

1. The presumption is that costs will follow the event (r 42.1 of the UCPR and Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59).
2. The "event" refers to the event of the claim and the practical result of it: Sze Tu v Lowe (No 2) [2015] NSWCA 91 at [39]. Generally, that means an unsuccessful party can be ordered to pay the entirety of the costs of the successful party, even though the successful party did not succeed on all issues: : James v Surf Road Nominees Pty Ltd (No2) [2005] NSWCA 296 at [32]; Roads and Traffic Authority v McGregor & Anor (No2) [2005] NSWCA 453 at [17].
3. I have earlier set out the terms of the original Summons; the Council's Amended Summons; and the declaration and orders made by consent on 20 August 2021. Although it can be seen from the sequence of these that the practical outcome agreed between the Council and the Company, to enable the dwelling on the site to be rendered bushfire safety‑compliant, are in significantly differing terms to what was proposed in either the original Summons or the Amended Summons, nonetheless, the primary "event" providing the foundation for those orders was by making of the declaration of invalidity of the CDC issued by Mr Wood.
4. That proposed declaration of invalidity was the consistent foundational element underpinning of, and providing the basis for, steps being sought by the Council to rectify its bushfire safety concerns arising from the approval of plans for the dwelling on the site being at a lower BAL level than was mandated by Planning for Bushfire Protection.
5. The declaration sought and made, therefore, is to be regarded as the "event" for present purposes - with the nature of the proposed or eventually made rectification requirements being a natural consequence of that "event".
6. For this reason, the differing paths proposed in the original Summons and, subsequently, in the Amended Summons when compared to the orders made on 20 August 2021 consequent on my making of the declaration sought cannot alter the fact that the presumption in r 42.1 of the UCPR, that costs follow the "event".
7. The costs' consequences flow from the making of the declaration rather than from the detail of the orders agreed between the Council and the Company as the appropriate path forward to implement rectification works consequent on the making of that declaration.
8. The issues potentially requiring to be addressed from the time of the submitting appearance being entered by Mr Wood up until my giving effect to the agreement between the Council and the Company lay entirely at the feet of the Company. There is no evidence of any unnecessary delay by the Council or additional expense arising out of the negotiation process between the Company and the Council that resulted in the Consent Orders resolving the substantive issues in the proceedings. There is no basis upon which Mr Wood could be regarded as liable for any costs of that bilateral process and there is no aspect of the Council's conduct during that process that was unreasonable in any fashion which would require it to bear any of the costs burden for that period.

Costs of the costs proceedings

1. Costs of costs hearings conventionally follow the event and there is nothing in these costs proceedings that would intervene to set aside that presumption.
2. As a consequence, it is next appropriate to consider whether the costs outcome should be reflected in a gross sum costs order and, if so, how those costs should be apportioned.
3. Although it was necessary for Mr March to take part in the costs hearing, Mr Wood's role was a minor one and, as a consequence (as later dealt with), only a small proportion of the costs of the costs hearing should fall on Mr Wood.

Gross sum costs orders

1. I am satisfied that the making of gross sum costs orders, to give effect to the apportionment I have determined is appropriate, is the sensible and practical basis upon which to ensure that these costs proceedings are concluded in a fashion consistent with the overarching objectives set by s 56 of the Civil Procedure Act.
2. I have also concluded that the appropriate discount rate to be applied to the Council's actual costs to reflect outcomes, consistent with what would be expected to be derived from an assessment process, would be 30% only as the midpoint in the conventional range reflects the fact that there was no compelling reason to skew the outcome in either direction.
3. The costs orders at the conclusion of this judgment have been made on the basis that each of Mr Wood and the Company will be required to pay 70% of the relevant portion of the Council's costs which I have concluded is to be attributed to that party.
4. As a consequence, it is necessary for me to consider how the resulting 70% is to be apportioned between Mr Wood and the Company for the purposes of determining the quantum to be incorporated in the gross sum costs order to be made against each of those parties. I now turn to address that task for each of the three phases of these proceedings.

Apportionment

1. Having regard to the fact that the first element of the Council's costs of $10,000 arose prior to the entry of Mr Wood's submitting appearance, I am satisfied that Mr Wood and the Company should each bear one-half of the discounted sum of $7,000 for this phase of the proceedings.
2. As a consequence, Mr Wood and the Company are each to be liable for the sum of $3,500 as part of the overall gross sum costs order to be made against that party.
3. However, after the entry of Mr Wood's submitting appearance, the entirety of the basis of these Class 4 proceedings, up to and including the making of the Consent Orders on 20 August 2021 resolving the substantive issues in dispute, was solely occasioned as a result of the contest between the Council and the Company as to the terms of the appropriate orders to be made consequent upon a declaration of invalidity of the CDC. As a consequence, the entirety of the discounted portion of the Council's costs of this phase are appropriate to be borne by the Company. The result of this is that a further $56,000 is appropriate to be added to the gross sum costs' liability of the Company.
4. Finally, with respect to the holding of the costs hearing on 1 December 2021, the dominant element requiring to be addressed on that day was the extent to which the costs' liability for the substantive phase of the proceedings should lie on the Company or whether there were factors which would warrant reduction of that liability as earlier discussed.
5. As a result, the greater portion of the costs hearing was taken up by submissions concerning this point, a point not significantly involving potential liability for Mr Wood (despite Mr Doyle's submissions). I am therefore satisfied that it would be inappropriate to split the gross sum costs' element of the Council's costs attributable to the costs hearing evenly between Mr Wood and the Company. Given that the appropriate gross sum element of the Council's costs attributable to the costs hearing results in a discounted costs' total of $10,500 for the costs hearing, I am satisfied that Mr Wood should have a one‑fifth liability of $2,100 and the Company a four-fifths' liability of $8,400 as the costs to be attributed, relevantly, for the costs hearing process. The overall consequences, therefore, are that it is appropriate to make a gross sum costs order against Mr Wood of $5,600 and a gross sum costs order against the Company of $67,900.

Introduction

1. I had also asked that each of the advocates address me as to the time period which should be permitted for satisfaction of any gross sum costs order should I determine that such an outcome was appropriate.

The position for Mr Wood

1. Mr March submitted that Mr Wood should be allowed 28 days within which to satisfy any such costs order made against him. I am satisfied that the period of time advanced on behalf of Mr Wood is appropriate and that the costs order made against him should require that it be satisfied within 28 days of my making the orders at the conclusion of this judgment.

The position for the Company

1. I canvassed with Mr Doyle and Mr Astill whether any costs liability falling on the Company should be deferred in some fashion pending the outcome of the Supreme Court proceedings. The position advanced for the Company was that any such costs' liability should be deferred until 14 days after the date of finalisation of the Supreme Court proceedings.
2. Mr Astill had, at my request, sought instructions on such a proposition. He submitted that, whilst the Council did not support such a complete deferral until after the determination of the Supreme Court proceedings, if I was minded to contemplate a non-standard payment obligation based on what he submitted was the scant financial information contained in the below‑quoted passage from one of Mr Elek's affidavits, the appropriate basis would be for me to set a payment schedule, based on monthly rests, with such payments spread over a period which would make allowance for finalisation of the Supreme Court proceedings. When I expressed reservations as to whether I would have the power to impose such a payment schedule, Mr Astill submitted that the power in s 98 of the Civil Procedure Act was sufficiently broad to encompass the making of such a payment schedule order.
3. Mr Elek deposed in his affidavit of 16 August 2021, at paragraphs 76 to 78, that: 76. I have been struggling for well over a year to obtain Council signoff for a set of plans that will allow me to complete my house. From the plans available at present, those works will cost hundreds of thousands of dollars in demolishing part of what was constructed in reliance upon the CDC, and re building parts of the house to a higher level of fire certification. I would never have built the building the way I have if I had known there was a problem with the CDC. 77. Having regard to the scope of works currently proposed by my fire safety engineer, I estimate that once I have the funds to carry out the upgrade works required to bring the Property into compliance with PBP Guidelines, they will take approximately 6 months to complete from the date that a construction certificate is issued. That estimate does not however allow for delays that may well arise as a result of Public Health Orders made to address the present COVID‑19 pandemic, which is currently affecting my ability to schedule suitably qualified contractors and carry out works within the usual timeframes. 78. I intend to complete those upgrade works as soon as practicable. However, I am not currently in a financial position to complete the works until such time as the Certifier accepts liability for the costs of those works and provides me with an appropriate indemnity for those costs. I do not have a current loan approval to finance those upgrade works.
4. I do not consider that the evidence in the above‑quoted passage from Mr Elek's affidavit concerning his finances provides any proper basis upon which I could defer crystallisation on any extended basis for permitting the Company to satisfy the costs order I propose to make against it and in the Council's favour.
5. Although I am prepared to give a modestly longer time period by the conclusion of which the Company is to satisfy the costs order to be made against it, I am not prepared to extend that time period in a fashion which would be likely to permit resolution of the Company Supreme Court proceedings against Mr Wood. Mr Elek's affidavit simply fails to provide any sufficient evidentiary basis concerning his or the Company's financial position to what would be the necessary level of detail for me to contemplate whether such an extended deferral was warranted.
6. It therefore follows that the costs order against the Company in the Council's favour will be required to be satisfied within 60 days.
7. Whether Mr Elek and/or the Company can come to some different and more extended arrangement concerning payment of costs to the Council is a matter for negotiation between the Company and the Council rather than by curial intervention.

Orders

1. It follows that the appropriate orders to be made in these proceedings (encompassing the costs of these costs proceedings) are: 1. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005, the First Respondent is to pay to the Applicant gross sum costs of $5,600 within 28 days of the date of these orders; 2. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005, the Second Respondent is to pay to the Applicant gross sum costs of $67,900 within 60 days from the date of these orders; and 3. The exhibits are returned.

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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: 21 February 2022