Coonamble Shire Council v Bequick Pty Ltd [2026] NSWSC 607 | Case summary | Zoe

NSWNSWSC

Coonamble Shire Council v Bequick Pty Ltd

[2026] NSWSC 607

Supreme Court of NSW|2026-05-29|Before: Harrison AsJ

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-05-29

Before

Harrison AsJ

Catchwords

LOCAL GOVERNMENT – orders – s 124 Local Government Act 1993 (NSW) – asbestos contamination after fire to property – orders requiring premises in safe condition – whether orders valid – whether the defendant complied with orders – Council entry and remediation under s 678 – debt recovery – judgment for the plaintiff TORTS – trespass – cross-claim – Council entry onto private property – demolition of fire-damaged property – asbestos contamination – whether Council authorised to enter – whether procedural fairness denied – s 43A Civil Liability Act 2002 (NSW) – whether bars cross-claim – cross-claim is dismissed DAMAGES – post-fire demolition – betterment principle – whether deduction for betterment applicable – method of calculation

Source

Original judgment source is linked above.

Catchwords

LOCAL GOVERNMENT – orders – s 124 Local Government Act 1993 (NSW) – asbestos contamination after fire to property – orders requiring premises in safe condition – whether orders valid – whether the defendant complied with orders – Council entry and remediation under s 678 – debt recovery – judgment for the plaintiff TORTS – trespass – cross-claim – Council entry onto private property – demolition of fire-damaged property – asbestos contamination – whether Council authorised to enter – whether procedural fairness denied – s 43A Civil Liability Act 2002 (NSW) – whether bars cross-claim – cross-claim is dismissed DAMAGES – post-fire demolition – betterment principle – whether deduction for betterment applicable – method of calculation

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Coonamble Shire Council v Bequick Pty Ltd [2026] NSWSC 607

Hearing dates: 8-12 September 2025
Submissions received 16 January 2026

Date of orders: 29 May 2026

Decision date: 29 May 2026

Jurisdiction: Common Law

Before: Harrison AsJ

Decision: Judgment: Judgment is entered for the plaintiff. The defendant is to pay the plaintiff the sum of $148,106.61 plus interest. The Court orders that: The cross-claim is dismissed. The defendant is to pay the plaintiff’s costs of the proceedings and the cross-claim. The parties are to agree on the sum of interest owed up until the date of this judgment.

Cases Cited: Ballina Shire Council v Joblin [2022] NSWLEC 90
Barclay v Wollongong City Council (2005) 139 LGERA 167; [2005] NSWLEC 160;
Bobolas v Waverly Council (2012) 187 LGERA 63; [2012] NSWCA 126
Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314
Darley Australia Pty Ltd v Walfertan Processors Pty Ltd 188 LGERA 26; [2012] NSWCA 48
Della Franca v Lorenzato [2021] NSWCA 321
Disorganized Developments Pty Ltd v South Australia (2023) 280 CLR 515; (2023) 410 ALR 508; (2023) 97 ALJR 575; [2023] HCA 22
Entick v Carrington (1765) 95 ER 807; (1765) 19 St Tr 1029
Foster v Sutherland Shire Council [2001] NSWLEC 89
Gales Holdings Pty Ltd v Tweed Shire Council [2013] NSWCA 382; 85 NSWLR 514
Gulic v Boral Transport Ltd [2016] NSWCA 269
Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46
Hunt Leather Pty Ltd v Transport for NSW [2023] NSWSC 840
Hunt Leather Pty Ltd v Transport for NSW (2025) 426 ALR 621; [2025] HCA 53
Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd (2002) 18 BCL 122; [2001] NSWCA 313
Johnson v Buchanan [2012] VSC 195
Mailey v Sutherland Shire Council [2017] NSWCA 343
Manly Council v Leech [2015] NSWLEC 149
McNeil v Narrabri Shire Council [2013] NSWCA 112
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29
Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59
Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294
Palmer v Australian Securities and Investments Commission (ASIC) (No 2) [2025] FCA 1425
Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5
R v Costa [2025] NSWSC 1575
Roads and Maritime Services v Zraika (2016) 94 NSWLR 159
Roberts v Goodwin Street Developments Pty Ltd (2023) 110 NSWLR 557; [2023] NSWCA 5
State of New South Wales v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Traili v McRae (2002) 122 FCR 349; [2002] FCAFC 235
Transport for NSW v Hunt Leather Pty Ltd (2024) 115 NSWLR 489; [2024] NSWCA 227
Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333
Universal 1919 Pty Ltd v 122 Pitt Street Pty Ltd [2020] NSWCA 50
Walker Groups Constructions Pty Ltd v Tzaneros Investments Pty Ltd (2017) 94 NSWLR 108; [2017] NSWCA 27

This judgment involves a claim for debt and a cross-claim seeking damages. It is the cross-claim that is the focus of this judgment.
The plaintiff/cross-defendant is the Coonamble Shire Council (the Council). It is represented by M Wright SC with D Robertson of counsel. The defendant/ cross-claimant is Bequick Pty Ltd (Bequick). It is the registered proprietor of 81-83 Castlereagh (the property). It is represented by N Kabilafkas of counsel.
The parties relied on a joint court book comprising 3 volumes (Exhibits A1, A2, A3 and collectively will be referred to as CB). Included with the joint court book was a USB that contained three short videos that documents the fire-damage at the property. These videos were played in Court.
On 23 August 2018, at 12.30am, a fire ran through the property and damaged several adjoining buildings located at the corner of Castlereagh and Aberford Streets in the town of Coonamble, New South Wales. On 27 August 2018, the Council issued identical orders (the Order(s)) to the proprietors of each of the fire-damaged properties directing them to take certain steps to render their premises safe. In the opinion of the Council, those Orders were not complied with by the proprietors.
On 5 October 2018, secondary orders were issued granting an extension of time (the Extension Order(s)) and extending the dates for compliance but contained the same terms as in the first Orders. Still not satisfied that those orders had been complied with, the Council itself undertook steps to render the premises safe. These steps included complete demolition of the buildings.
On 8 January 2019, the Council issued an invoice to Bequick in the sum $137,092.24 being what it considered to be Bequick's proper share of the total costs. This invoice remained unpaid.
On 20 May 2021, the Council issued a letter to Bequick enclosing invoice no. 10621 for the sum of $148,106.61.
On 11 October 2021, SR Legal issued a letter of demand to Bequick demanding of invoice no. 10621. Bequick has not paid this debt.
By statement of claim dated 12 July 2022, the Council brings an action against Bequick, one of the proprietors in debt, seeking reimbursement of funds expended in rendering the premises safe after the fire.
By way of cross-claim dated 13 September 2022, Bequick brings an action against the Council for damages caused by trespass to land, claiming that the Council had no authority to enter into and demolish the property.
As the balance of the issues are raised in the cross-claim; it is therefore convenient that I deal with Bequick’s cross-claim first.
The pleading framework is set out in detail later in this judgment.

Coonamble is a small town in central western New South Wales. It is about a 6-hour drive from Sydney, a 2-hour drive from Dubbo, and a 3-hour drive from Tamworth. Coonamble’s high street is Castlereagh Street.
At all relevant times, the Council was constituted as the local council for the Coonamble local government area under ss 219 and 220(1) of the Local Government Act 1993 (NSW).
In about December 2016, Bequick purchased the property at 81-83 Castlereagh Street, Coonamble for $150,000 (Exhibit GW-A 1, par 14). The property was located at the corner of Castlereagh and Aberford Streets. Mr Wooding was and still is the sole director of Bequick.
The building on the property was approximately 100 years old, although, it had not been classed as a heritage item pursuant to the Coonamble Local Environment Plan 2011 (NSW). Mr Wooding had assumed otherwise and only learnt on the first day of the hearing that it was not heritage listed (T86.1-13). However, the Commercial Hotel across the road of which Mr Wooding, through Bequick, was the proprietor is listed as a heritage item (Coonamble Local Environment Plan Sch 5 Pt 1).
During Bequick’s ownership of the property, including up to the date of the fire, the property lay vacant. At that time, it was not used for commercial purposes (GW-A 1, par 17). Mr Wooding’s intention was to develop the property into a motel/motor inn named “the Woolshed Motor Inn” to complement the Commercial Hotel across the road and create an accommodation precinct in town (GW-A 1, par 25).
In about July 2018, Mr Wooding engaged Josephine Redden (Ms Redden), a building designer, to develop some schematic plans in relation to the property on the basis that he was interested in turning it into a motor inn (GW-A 1, par 26). On 2 August 2018 (prior to the fire), Ms Redden visited the property. She relied upon her affidavit and gave evidence that, in her view, the property was “run down and not in use” (Exhibit JR-A, par 10). However, it was nonetheless “solid, structurally sound and simple” (JR-A, par 11), “[t]he walls of the building were double brick, with sections of triple brick” (JR-A, par 14). Her evidence is a subject to which I will return. She took several photographs of the property which are in evidence (CB, p 626-640). I reproduce one of them below (CB, p 636):
As previously mentioned at about 12:30am on 23 August 2018, a fire which was started by an unknown person damaged the property that was in a row of adjoining buildings. The fire-damaged properties were:
79 Castlereagh Street, owned by A M Karanough and A Rangiawha;
81-83 Castlereagh Street (i.e. the property), owned by Bequick;
48-50 Aberford Street, owned by Raynbut Pty Ltd; and
52 Aberford Street, owned by Kype Pty Ltd. (the four fire-damaged properties).
Mr Wooding witnessed the fire as it occurred. He was working as the barman at the Commercial Hotel that is diagonally opposite the property. He deposed (GW-1 A, pars 30-34):

In December 2016, through Bequick, Mr Wooding purchased the property on 81-83 Castlereagh Street, Coonamble, New South Wales (lot 61 in deposited plan 253491).
The property has two street frontages: Castlereagh Street and Aberford Street. The land size of the Property is 980.4 sqm. The historic building on the property was over 100 years old (GJW-1, p 1, a copy of deposited plan 253491).
Many years before Bequick's ownership, the property had been used for a discount shop called “Bag-A-Bargain”. That signage was still on the front of the building.
The external construction of the building on the property was made with red sandstock bricks. Sandstock bricks are historic hand-made bricks. The final step of making these bricks is by burning them in a kiln. He explained that he has all this knowledge because he started to work with bricks as a teenager and during his apprenticeship, he worked on several historical building sites which involved remodelling, removing and replacing sandstock bricks in walls. In his experience, those bricks are more expensive than modern ones.
His building experience enabled him to recognise the features of the property. On the Castlereagh Street frontage, the cantilevered frame awnings attached to the exterior wall were made from steel. All the glass shop/front windows were of an aluminium frame. The internal walls of 4m high were built of double and/or triple brick with arches. Internally, the building had a metal/gyprock suspended ceiling with commercial ceiling tiles. It also had a reinforced concrete floor from when it in the past had been converted to a supermarket, which to the best of his knowledge, was in the mid-1970s. Above the ceiling were 5 Cathedral-style Oregon trusses (triangular wooden structures designed to support the roof) in excellent condition. The roof space was 4m high. The roof was made of corrugated iron. At the time, the paint colours were white and burgundy.
Additionally, Mr Wooding has a long-standing practice of keeping a hard copy diary in which he notes tasks done and to be done.

Ms Redden has a Bachelor of Science (Architecture) which her obtained in approximately 2005. She obtained a Master of Architecture in approximately 2011. She is not registered with the NSW Architects Registration Board.
Her business, which she operates as a sole trader, is called Redden Design. Since 2013, she has operated her business. In her role as a building designer, she creates designs for new buildings, renovations and extensions. She also assists with her client's Development Approval processes and helps with client's building processes by liaising with builders, engineers, surveyors and other relevant consultants required for the project.
Ms Redden first became acquainted with Mr Wooding when she hired some equipment from his hire business in about 2014. She caught up with Mr Wooding in late June 2018 when she delivered an old timber wool press that she sold to him via Facebook Marketplace (JR-A, pars 6-7).
It was at this visit that Mr Wooding mentioned to her that he was the owner of the property and that he was interested in turning it into a motor inn. He asked Ms Redden if she would be interested in designing this given her interest in older buildings and experience in converting such a building (JR-A, par 7).
Sometime between the late June 2018 and prior to the site visit on 2 August 2018, Ms Redden told Mr Wooding that she had a brief look at the property and was interested in working on it. She then scheduled a site visit to measure the existing structures so that she could work out the spatial parameters for the re-design. She remembers mentioning to Mr Wooding that she thought the property had potential with its size, volume and unique roof line (JR-A, par 8).
In about July 2018, he engaged Ms Redden to draft a site plan.
It is common ground between Mr Wooding and Ms Redden that on 2 August 2018 she first visited the property to consult with him, review the site and take measurements. Ms Redden independently agreed that they inspected the property soon before the fire.
Mr Wooding intended to use all the characteristics of the building, such as the brickwork which was going to be used as feature walls in all the foyers, halls and rooms. He discussed this plan with Ms Redden. He planned to remove the suspended 1970s ceiling, to reveal the Oregon trusses for display.
Mr Wooding recalled that Ms Redden did not complete the existing site plans by the time of the fire. Shortly after the fire, he confirmed to Ms Redden that he wanted her to complete her work which she had started prior to the fire.
In cross-examination, Ms Redden accepted that the drawings prepared by her in the period between 27 August and 1 September 2018 were “like the start of the concept”, being “measured drawings basically from the existing” structure (T143.25-30).

On 2 August 2018, Ms Redden made a site visit to the property, together with Mr Wooding. During her inspection, she saw the property was run down and not in use. The roof was made from corrugated iron. The roof structure was constructed of decorative wooden rafters that made up a clerestory/dormer cupola type roof line section. This had been covered from sight by suspended commercial ceiling tiles. Her proposal was to remove the false ceiling to expose the rafters as a feature of the motor inn.
On the Aberford Street frontage/elevation, the roof line windows had been covered enclosed with corrugated iron. From her inspection and from an old photo of the building she saw, it appeared to her that these windows could have been operable (awning type) windows. She considered the building itself, while old, to be solid, structurally sound and simple (JR-A, par 11).
Ms Redden recalled having the view that renovating and restoring an historic building such as this might breathe new life into Coonamble and add to the streetscape, as it sat on a prominent corner/entrance to the main street of Coonamble.
Ms Redden took full measurements for the purpose of preparing drawings of the existing building to include a floor plan, elevations and site plan, and considering which of the building's original features could be retained during the proposed conversion/re-design. Ms Redden noted the measurements down on her drawing of the property which she sketched by hand.
She did not rely on the rough drawing of dimensions and the outline of the building which Mr Wooding gave her when she arrived on 2 August 2018.
Ms Redden also took numerous photographs of the property, inside and out and from different angles, using her iPhone. Based on her business records, she took a total of 112 photographs that day. Some of the photographs she took were from an elevated position across the street, from the balcony of the Commercial Hotel, as well as from street level near the corner of Aberford and Castlereagh Streets.
She recorded the hours she spent at the property on 2 August 2018 in a hard copy “tax invoice/statement” book. Based on what she recorded on tax invoice/statement no. 838986, she spent between 9:00am and 2:00pm at the property consulting with Mr Wooding and taking site measurements on and spent 2.5 hours traveling to and from the property, 1.5 hours working on the design and a further 1.5 hours on 10 August 2018.
On 29 August 2018, Ms Redden prepared updated versions of the drawings which contained additional information regarding site details, which she obtained using the photographs and some measurements (“Measure Up -4”, JMR-1, p 7) recorded on her site visit on 2 August 2018, the use of six maps, Google Earth and an original site plan to show site boundaries.
On 1 September 2018, Ms Redden prepared a third set of drawings by updating the existing floor plan to include boundary dimensions. She did not change the 3D Perspectives drawing on this occasion.
In about late August 2018 or early September 2018, Mr Wooding received the final versions of the "Floor Plan - Existing" and "3D Perspectives - Existing" from Ms Redden.
Annexed to Mr Wooding’s affidavit dated 5 July 2024 (GJW-1, p 3 to 5) were the following documents prepared by Ms Redden:
a drawing "Floor Plan - Existing" dated 2 August 2018;
a drawing "3D Perspectives - Existing" dated 2 August 2018; and
invoice no. 838986 dated 27 August 2018 relating to her site visit on 2 August 2018 and preparation of drawings of the existing floor plan and building.

On 27 August 2018, the Council forwarded the Orders pursuant to ss 124 and 129 of the Local Government Act, most likely to Bequick’s accountant’s office, as that is where the Extension Order was served by post.
After reading the Order, Mr Wooding noted that the Council had considered that the property was “likely to contain asbestos which may pose a threat to public health. The asbestos is likely to have been disturbed due to the recent fire at the premises”. He also noted that the Council was directing Bequick “to make the premises safe and engage a licensed contractor to identify and remove asbestos from the premise”.
Mr Wooding explained that he did not know that there was asbestos at the property since the Council was stating the premises was “likely” to contain asbestos. He understood from the Council’s used of the word “likely”, that the Council did not know for sure either (GW-A 1, par 47).
He further explained that from his experience as a builder/carpenter, fibrous cement sheeting was commonly used in ceilings and walls, in both commercial and residential buildings, and he was aware that asbestos was sometimes added to fibro products from about the 1940s to 1980s. This is non-friable (bonded) asbestos. Prior to the fire, the only place he had seen compressed fibro sheeting was above the glass shop fronts on the main street entrance of the building on the property (on the Castlereagh Street frontage). To his understanding, “friable asbestos” is the high-risk asbestos, because it can be crumbled by hand or easily reduced to a powder, which can become airborne. To his understanding, non-friable asbestos is material containing asbestos fibres, where the material has been reinforced with a bonding compound, such as the fibro sheeting. He had a general understanding of the two types of asbestos from his experience as a builder/carpenter. He learned more because of dealing with asbestos contractors in the aftermath of the fire.
Mr Wooding understood from the Orders that, to identify and remove possible asbestos from the premises, the Council was directing Bequick to undertake six steps:
Direction 1: render the premises safe, within 24 hours of 29 August 2018.
Direction 2: erect fences to prevent entry by unauthorised people, within 24 hours of 29 August 2018.
Direction 3: engage an Occupational Hygienist to identify all areas that contain asbestos on the premises and furnish this report to Council, within 72 hours of 29 August 2018.
Direction 4: engage a licensed contractor to spray PVA sealant and dye, within 7 Days of 29 August 2018.
Direction 5: engage a licensed contractor to remove the asbestos and demolish and remove all building debris from the premises make site safe and dispose to a licensed facility, within 21 days of 29 August 2018.
Direction 6: furnish Council with receipts from the licensed facility for the disposal of asbestos, within 21 days of 29 August 2018.

In respect of Direction 4, on behalf of Bequick, Mr Wooding had engaged Mr Ezzey, to spray PVA (polyvinyl sealant) and dye at the property. He had not met or spoken with Mr Ezzey before. Mr Ezzey held an Asbestos Removal Licence Class B - Non-Friable at the time. Mr Ezzey initially contacted Mr Wooding after the fire, saying a friend of his from Coonamble had informed him of the fire, and Mr Ezzey introduced himself and said he worked out of Gunnedah. Mr Ezzey did not provide affidavit nor give evidence and was not required for cross-examination.
After Mr Wooding received the Orders, he called Mr Ezzey and read Direction 4 to him. Mr Wooding understood from speaking with Mr Ezzey that the dye added to the PVA sealants allowed the sprayer to see which areas have been treated. Mr Wooding kept a diary note that he called Mr Ezzey at 10:00am on 30 August 2018 and asked him to come to Coonamble from Gunnedah. Although, he does not remember what day he called Mr Ezzey. He remembered Mr Ezzey met him at the property on 30 August 2018 between about 1:00pm and 2:00pm.
When he met Mr Ezzey at the property and watched him work, Mr Wooding had no prior experience with asbestos removal and had not witnessed such work before. Mr Ezzey completed the spraying work on the afternoon of 30 August 2018.
Mr Ezzey did not charge him for the work, although Mr Wooding stated he offered to pay on several occasions. Mr Ezzey had a sprayer, resembling a garden weed sprayer to spray pieces of fibro lying on the footpath before placing them in a bag which he sealed. To Mr Wooding the sprayed substance looked like glue, and to his understanding, when sprayed on materials it stops dust and airborne fibres. The substance sprayed was pink. He did not see Mr Ezzey prepare the mixture.
Mr Ezzey then placed the bag in his vehicle for disposal. He also sprayed numerous pieces along the footpath outside next door (no. 79 Castlereagh Street owned by the Coonamble Mayor), then picked them up and bagged them. Mr Ezzey stayed on the footpath on Castlereagh Street while he worked and sprayed anything that looked like it might contain asbestos on the outside of the building on the property, and on the footpath. He also extended his sprayer inside the building of the property where he could reach and sprayed the mixture around.
Mr Ezzey repeated the same process outside property no. 79 Castlereagh Street where there were broken pieces of fibro lying on the ground. Mr Ezzey sprayed the pieces, bagged them and placed them in his car.
At the time, Mr Ezzey wore white PPE coveralls, although he is unsure if Mr Ezzey wore a mask. Mr Ezzey took approximately 20 minutes to do the work. Mr Wooding did not wear PPE, and he remained some distance from Mr Ezzey while observing his work.
By the time Mr Ezzey had finished, Mr Wooding observed that Mr Ezzey had picked up every larger piece of fibro sheet lying on the western footpath on Castlereagh Street, including under the awning of the building, and in front of no. 79 Castlereagh Street. The items Mr Ezzey bagged are the larger items shown in the video recorded by Mr Wooding on 25 August 2018 (CB, tab 6).
The south wall of the building on the property, running along Aberford Street, was entirely brick. As Mr Wooding had previously observed and again observed when he attended the property with Mr Ezzey on 30 August 2018, there was no broken fibro pieces on that footpath adjacent to the property. There was some broken fibro sheeting further along on the footpath on Aberford Street outside the small shops on that street, including the closed down cafe and the Anglican Church op shop.

At the time Mr Wooding received the Orders, he was not sure whether:
the Council was directing him to engage a licensed contractor by whatever the due date was meant to be, and for the work to be completed in due course; or
for the licensed contractor to be engaged and for this work to be completed by whatever the due date was meant to be.
From his reading of Direction 5, Mr Wooding understood that the Council required Bequick to remove asbestos, and to demolish and remove all loose building debris, with that asbestos and loose building debris from the fire being disposed in a licensed facility. He did not read or understand that he was being directed to demolish a structurally sound building or to demolish the whole building and did not understand that the words “demolish and remove all debris” was an order to demolish the whole property, including the exterior and interior brick walls which were still standing.
On 6 September 2018 (and still within the Order’s time for compliance), the Council received a quote from Newbold Bulk Haulage for the "removal of Friable Asbestos and Demolition of Fire damaged buildings in Coonamble Main Street”. Mr Wooding was not aware of this quote at the time. Mr Wooding says he became aware of the Newbold Bulk Haulage quote through discovery in these proceedings.
Mr Wooding did not understand how a quote for the demolition of the four fire-damaged properties could be requested by the Council:
less than a fortnight after the fire;
when the time for compliance given under the Orders issued to Bequick was yet to expire;
when, as he understood, there was no actual evidence of asbestos or unsafe buildings before the Council;
when he had not even been informed that the Council had taken the view demolition of the property was actually required or my input sought; and
when he was not allowed to have any meeting or contact with Council representatives to discuss the matter.
Mr Wooding evidence is that he found it very difficult, in a small country town, to engage qualified specialists, especially engineers and hygienists, who potentially had to come from Sydney and who had prior work commitments. He explains the time frames imposed by the Council were difficult to comply with; for example, Direction 3 requiring an Occupational Hygienist to identify all areas that contained asbestos and furnish a report within 72 hours. There were few hygienists in NSW to choose from. On 30 August 2018, which was within 72 hours of 27 August 2018, he arranged for Mr Clifton to attend from the Central Coast. By the time he was able to attend Coonamble on 6 September 2018, this was the same date as the Council had obtained a quote for demolition of all the properties.
In the circumstances, he says that the Council demolished the whole building on the property before he had any meeting with the Council representatives or could comply with Direction 5.
For the same reason, he says that could not comply with Direction 6.
I note that the evidence Mr Wooding gave in cross-examination was at odds with that which was contained in his affidavits referred to in detail above.

Mr Wooding observed that the exterior walls, internal brick walls with arches in them, the amenity block built from concrete blocks with its roof and the solid brick walk-in safe with its big man-size steel door all still intact.
Ms Redden confirmed that she observed some damage to the walls, particularly the tops of the southern wall, and to some walls where the roof trusses had fallen in.
During the inspection Mr Wooding and Ms Redden discussed the extent of the damage and that they could push forward with their original design for the motor inn if he installed a new roof on the building.
She recommended to Mr Wooding that he engage a structural engineer because it was her view that it was necessary for that expertise to be engaged to assess the structural integrity of the walls post fire (T142.32-35). An engineer report would be necessary to determine that the remaining walls could be use in any rebuilding of the building.
She recalled thinking at the time that even if a structural engineer said that the building could not be saved, the double and triple layer of bricks could still be salvaged. These were vintage bricks and she later calculated based on her measurements an approximate number of 40,000 bricks.
Based on her profession as an architect (although no longer practising as such), as well as her work converting an old Masonic Lodge into a house (which was a red brick building), she was aware that these bricks have a re-sale value as they are becoming rare. She also observed other items on the property that she thought would have re-sale value, such as the safe door. Ms Redden shared those views with Mr Wooding at the time.
She discussed with Mr Wooding that even if the building was deemed unsalvageable and had to be demolished, that Mr Wooding owning a hire business that had an extensive amount of heavy equipment would have made the clean-up quite efficient and cost-effective.
She additionally told Mr Wooding that it would be worthwhile to engage a quantity surveyor to get the value of what was left and what had been demolished.

By 23 October 2018, Mr Wooding had not heard from Mr Byrne following their conversation by text exchange and email.
On 23 October 2018, Mr Wooding sent Mr Byrne a follow-up text asking if he was “interested in this job”, by which Mr Wooding was referring to the removal of the building debris from the property. He does not recall if they had a discussion between that text message, and the next text message to Mr Byrne on 24 October 2018. Mr Wooding became aware from a later text from Mr Byrne on 28 October 2018 that Byrne Demolition was quoting the Council at the same time but he thought this was for the required clean-up as he was trying to engage Byrne Demolition for the same purpose. Mr Byrne did not immediately reply by text.
The quote dated 24 October 2018 from Byrne Demolition to the Council in the sum of $64,580 plus GST is described as to “demolish and remove the buildings as discussed” (GJW-1, p 93). Mr Wooding only became aware during these proceedings, in about 2023, that Byrne Demolition had provided a quote to the Council for demolition rather than merely the removal of building debris.
While the Byrne Demotion quote to the Council dated 24 October 2018 was for $64,580 plus GST, a separate quote from Newbold Bulk Haulage dated 6 September 2018 was for $131,000 plus GST. Mr Wooding does not know why the Council proceeded to engage Newbold Bulk Haulage for the demotion despite its quote being more than double that of Byrne Demolition.
When he learned that the Council intended to enter the property to clear or clean it, Mr Wooding sent a letter to the Council by email at about 4:46pm on Friday, 26 October 2018 with the subject line “URGENT HEALTH INSPECTOR”. He also delivered a signed copy of the letter to the front desk of the Council’s office at about 4:55pm on the same day (GJW-1, p 95-96).
Mr Wooding did not receive a reply from the Council in relation to the above letter. At that point, he still thought the Council was intended only to clean up any asbestos and building debris. He was unaware the Council was intending to demolish the part of the building on the property which was still standing and had engaged Newbold Bulk Haulage to do so.

Mr Wooding had wanted to engage an engineer to inspect and write a report regarding the structural stability of the parts of the property still standing.
One of the engineers he tried to engage for this purpose at the outset was W J (Bill) Bryan in Tamworth. He does not recall when he initially spoke with Mr Bryan. Mr Bryan told Mr Wooding that he could not accept the work because he was unwell from a serious disease.
On 29 October 2018, Mr Wooding called Barnson Engineers. He made the call before he wrote to the Council again later that day. He spoke with Chris Bassingthwaighte (Mr Bassingthwaighte). Mr Bassingthwaighte identified himself as a structural engineer and they discussed the fire and the property. Mr Bassingthwaighte told him that Barnson Engineers had already provided a report for the Council. He now understands Mr Bassingthwaighte was referring to the Barnson Report dated 21 September 2018.
At about midday on 29 October 2018, he observed workers removing the first lot of temporary fencing from in front of the fire-damaged properties on Aberford Street.
At about 4:22pm on 29 October 2018, he forwarded to the Council his earlier email and letter of 26 October 2018 with the subject line “URGENT General manager and HEALTH INSPECTOR”. By the time of his email of 29 October 2018, he had learned of the Council’s intention to demolish and again requested to meet with Mr Warren and Mr Cock.
He then received a letter dated 29 October 2018 from the Council in response to his 29 October 2018 email (GJW-1, p 100) that states, in summary, the following:
The Extension Order was valid and required compliance by 15 October 2018;
Bequick had "not complied with the requirements of the [Extension Order] and Council is now exercising the option to enter upon the property to give effect to the [Orders]”;
the Council did “not intend to enter into any discussion regarding the matter”; and
the 26 October 2018 letter did not require any issue requiring a response.
The next day Mr Wooding wrote again to the Council in response by letter dated 30 October 2018. He hand delivered this letter to the Council's office that day (GJW-1, p 101).
On Thursday, 1 November 2018, Mr Wooding sent an email to Mr Bassingthwaighte following up their earlier discussion and confirming he wanted to proceed with “engineer documents stating the walls are sound etc or what you may recommend to make sound” (GJW-1, p 102-103, a copy of the email dated Thursday, 1 November 2018). His reference in the email to Mr Bassingthwaighte’s and his discussion on “Tuesday” was an error, as he believes they spoke on Monday, 29 October 2018.

On 10 January 2019, Mr Wooding received an email from the Council attaching an invoice no. 100115 dated 8 January 2019 addressed to Bequick in the sum of $137,092.24 for “expenses incurred in relation to demolition of the fire damaged building on Lot 61 DP253491 and associated works carried out by Council” (GJW-1 A, p 124-125, a copy of the covering letter dated 8 January 2019 and invoice no. 100115 dated 8 January 2019). Bequick did not pay invoice no. 100115.
On 29 March 2019, Bequick received a letter from the Council providing a breakdown of the costs said to have been incurred, and how those costs were apportioned between Bequick and the other fire-damaged property owners.
Mr Wooding was not sure that the costs the Council had claimed were accurate or that the methodology of apportionment was fair. He referred to par 29 of the affidavit of Mr Quarmby dated 12 January 2021 and Ex BQ-1 from pages 116 to 119. Mr Wooding disputed the following expenses related to Bequick in this and the following paragraph. Mr Quarmby included “invoices issued by Cant Bros Home Hardware in relation to clean-up and demolition works”. The items in those invoices were not used in respect of the property or the other fire-damaged properties. They were used on the adjoining no. 77 Castlereagh Street, which was not demolished. This was because the four properties which were demolished by the Council left vacant land, and items in those invoices are for buildings.
The invoice at p 116 of Ex BQ-1 includes an item for a 100 x 100 x 3mm RHS steel post, which he believed was used to support the front awning at no. 77 Castlereagh Street. He said the same invoice also includes a charge for 15 bags of rapid set cement, which was used as the pier under that steel post.
No. 77 Castlereagh Street shared a common wall with no. 79 Castlereagh Street which was damaged in the fire and then demolished by the Council. The Council accepted by letter to the owner of no. 77 Castlereagh Street (Halcroft & Bennett Ply Ltd) dated 19 December 2018 that it had undertaken unnecessary demolition works to the common wall between those two properties and that it would reinstate the concrete reinforced wall.

Mr Newbold is the Director of Newbold Bulk Haulage. He has held that role since the Company was registered on 7 November 2000.
Mr Newbold has held a Friable and Bonded Asbestos Removal License since 2000. He also has a demolition license. It is and as of 2018 was a Class A friable asbestos removal contractor.
He is frequently engaged by councils in the mid to north-west part of NSW in relation to demolition of sites impacted by fires.
Mr Newbold was aware a fire had impacted the four properties on the main street of Coonamble on the night of 22/23 August 2018.
On or about 6 September 2018, Mr Newbold was contacted by Council and asked to provide a quote for the removal of friable asbestos and demolition of the four fire-damaged properties.
On or about 6 September 2018, Mr Newbold provided a quote to Council for the removal of friable asbestos and demolition of fire-damaged properties. The quote was for the total sum of $131,000 plus GST. Of that sum, $46,000 plus GST pertained to “Bag-A-Bargain” which was what the property had been used for prior to Bequick’s ownership.
Between 24 September 2018 and 28 September 2018 Mr Newbold removed asbestos from the footpaths outside the four fire-damaged properties by spraying PVA glue and dye on the friable asbestos in accordance with SafeWork NSW Code of Practice. The dye allows clear identification of where the PVA spray has been applied. An invoice no. 1019 dated 30 September 2018 was issued to the Council in the sum of $23,979.65 inclusive of GST. That included an invoice from EnviroScience for the sum of $9,799.68 representing the cost of asbestos air monitoring and clearance provided by that company in relation to removal of asbestos from the shop front footpaths.
On 23 October 2018, Mr Newbold received a letter from the Council directing Newbold Bulk Haulage to carry out work in relation to the four fire-damaged properties. The work was to remove asbestos, clear out the debris and demolish the shops as soon as possible due to the presence of asbestos (the works).
On approximately 29 October 2018 the works commenced. Debris was removed in its entirety before demolition commenced.
When Mr Newbold commenced the works, he called Mr Wooding and asked if he wanted the safe door, he was advised that it was located at the rear of the property.
It appeared to Mr Newbold that little if any debris had been removed since the fire. He formed the opinion it was not safe to enter the four fire-damaged properties without machinery because of the presence of metal roofing material, asbestos, burnt out debris and loose material.
It was necessary to remove the metal sheeting first, then the debris and then the asbestos. All debris was classed as asbestos contaminated as in the occupational hygienist report. Due to the extensive amount of asbestos, all components removed, including the remnant brick walls, were cleaned on site. Geofabric was laid around the building, including the perimeter to prevent run-off water seeping or flowing outside the confines of the four fire-damaged properties. The geofabric was then disposed of in the same location as the asbestos, in a purpose-dug hole at the Council's landfill facility.
The machinery used to remove the material from the four fire-damaged properties, included 25 tonne and 12 tonne trucks and a 20 tonne excavator.
Mr Newbold does not know if the intensity of the fire compromised the integrity of the slab at the property, but it was very brittle in places and was cracked and broken. It appeared to be very old concrete for most of the slab. There was one relatively small area of some 25sqm which had newer concrete. The majority were, however, extremely brittle and crumbled easily.
He was directed verbally by Mr Cock to remove the slab and to cover with clean soil once clearance had been certified by the occupational hygienist.
The other fire-damaged properties had largely timber floors and those had burned out in the course of the fire.
Mr Wooding was present during the course of the works. At one stage, Mr Wooding live-streamed the works to SafeWork with a camera set up at his pub across the road. SafeWork carried out an audit of the works, and no further action was taken by it. Mr Newbold is used to dealing with SafeWork during services Newbold Bulk Haulage undertakes when it comes to asbestos and demolition.
In relation to the property, before Mr Newbold commenced the works, it was his opinion that there was no evidence that the asbestos had been sprayed and dyed in accordance with SafeWork guidelines. That was also the case in the remaining three of the four fire-damaged properties. There was no evidence of a MakeSafe procedure until completed by Mr Newbold.
Asbestos waste cannot be taken to general landfill facilities except with specific clearance from NSW EPA. It must be booked as a special waste deposit which can only be accepted at nominated licensed landfills, unless specific clearance is provided by NSW EPA. For amounts in in excess of 10sqm of non-friable asbestos and for any amount of friable asbestos, an asbestos remove license is required.
In addition, as at 2018, the removal of asbestos was tracked by NSW EPA via WasteLocate (now replaced by Integrated Waste Tracking Solution (IWTS)).
It did not appear to Mr Newbold that any asbestos had been removed from any of the four fire damaged properties prior to his commencement of the works on 29 October 2018. Had any such removal occurred, it would have required execution by a licensed asbestos removalist in accordance with the applicable regulatory framework. At the relevant time, authorised tips accepting asbestos were required to issue disposal dockets upon receipt. Further, a licensed removalist ordinarily would have provided the requisite SafeWork notification prior to commencing work, in addition to a hygienist air monitoring and clearance certificate and maintaining appropriate waste tracking documentation.
In relation to asbestos removed from the four fire-damaged properties, Mr Newbold dealt with Ms Smith of NSW EPA. Prior to commencement of the works, approximately 240m3 of asbestos was estimated to be removed from the four fire damaged properties. Mr Newbold undertook that work. Initially the bricks were cleaned and taken to Mr Newbold’s property but because it was unknown if they were contaminated with asbestos, Mr Newbold followed the direction of Ms Smith and took them to the Council’s landfill facility.
At the Council’s landfill facility, the Council arranged for a hole to be dug to accommodate the asbestos from the four fire-damaged properties. It was approximately 4m deep, 50m long and 20m wide. Mr Newbold used two trucks, each having a 20m3 capacity to remove the asbestos. Approximately 240m3 of asbestos were removed.
Throughout the works, Mr Newbold used spotters at the properties. The spotters stayed away from danger as much as possible, but it was difficult to even enter the property, particularly at the commencement of the works, due to the extent and type of rubble. The removal work was done in machines with a 30ft boom.
Once all the debris had been removed, Mr Newbold began the process of removing the remnant walls. As soon as the walls were touched, they gave way immediately. That did not surprise him as the properties had large timber trusses which were destroyed in the fire. There were gaps in the walls where the trusses had held the walls from span to span. Some areas of the walls had a rod throughout them but even in relation to those, once the area had been gutted, it only took a very slight effort for the walls to be removed.
In relation to the bricks, he estimated approximately 100,000 bricks were removed from the area. That pertains to all four of the fire-damaged properties.
Based on his experience, Mr Newbold stated that bricks such as the original bricks used to construct the four fire-damaged properties, if fully cleaned and intact and assuming no asbestos contamination remained, in a Sydney market could be sold for up to $3 per brick.
On 20 November 2018 Mr Newbold issued an invoice to the Council for the works. The invoice is for the sum of $151,800 inclusive of GST. It included a variation for the supply, delivery and spread of 350m3 of clean fill over all fire-damaged properties.

An issue arising from Mr Wooding’s affidavit evidence concerned the disposal of sandstock bricks from the property. Mr Wooding says that the sandstock bricks were not contaminated with asbestos and suggested they were not transported to the landfill facility in Coonamble.
At the time of the fire on 22 and 23 August 2018, management of the Council's landfill facility on Quambone Road, Coonamble was contracted to Robbo's Construction & Earthworks Pty Ltd, ABN 36 145 791 028 (Robbo's Construction).
Robbo's Construction managed the Council's landfill facility between October 2016 and November 2022. During that period, Robbo's Construction managed all material coming through the landfill facility and retained all tipping fees. Since January 2024, the Council has been managing the Coonamble landfill facility (BQ-A 2).
On 18 November 2024, Mr Quarmby attended Coonamble landfill facility with Mr Newbold of Newbold Bulk Haulage. Mr Quarmby asked Mr Newbold to show him the area where the bricks from the demolition of the properties had been deposited (annexed to BQ-A 2 are two photographs Mr Quarmby recorded on 18 November 2024 showing the piles or mounds of bricks identified by Mr Newbold as having been taken to Coonamble landfill facility by Newbold Bulk Haulage).
The NSW Environmental Protection Agency (NSW EPA) produced in answer to a subpoena in these proceedings what were described as “photos of site inspection on 20 November 2018”. There were 21 photographs produced. Mr Wooding believes the photograph shows piles of sandstock bricks taken from the property, with some modern bricks (the ones with holes) mixed in. From that photo, he does not believe they were taken to the landfill facility and says it looks like they were being stockpiled. He says sandstock bricks have a re-sale value. Ms Redden expressed that opinion to Mr Wooding. He does not know what became of the sandstock bricks after Newbold Bulk Haulage took them (GW1- A, par 148).
Mr Quarmby’s evidence is that the Council has not removed, sold or otherwise taken off-site from the Coonamble landfill facility any of the bricks from the properties (BQ-A 2, par 8).
As I have earlier referred to, Mr Newbold gave evidence that the bricks were contaminated with asbestos, and following the direction of Ms Smith took the bricks to the Council’s landfill facility.
I accept the evidence of Mr Newbold and Mr Quarmby.

In light of the High Court’s reasoning in respect of s 43A of the CLA, the Council made the following submissions as to the operation of s 43A in the present case.
First, the Court should not accept Bequick’s submissions, which relied on the Court of Appeal’s reasoning in Hunt Leather (No 3) (which has now been overturned in part by the High Court), that s 43A only applies to claims in negligence. The High Court did not hold that s 43A only applies to claims in negligence. Although not deciding the point, the High Court considered the applicability of s 43A on the basis that it was at least potentially applicable as a defence to a claim in nuisance, depending on the specific facts of the case.
The Council submitted that the Court should adopt the same approach in the present case as the High Court did in Hunt Leather (No 3), by proceeding on the basis that s 43A is potentially applicable as a defence to Bequick’s trespass claim, depending on the specific facts of the case as found. That is because a claim in trespass, like a claim in nuisance, is a claim to which Pt 5 of the CLA applies: see s 40(1) of the CLA.
Secondly, the High Court’s reasoning in Hunt Leather (No 3) makes clear that s 43A only applies in respect of liability which is “based on” an authority’s exercise of (or failure to exercise) a special statutory power. Therefore, it is necessary to identify the alleged acts or omissions of the authority which form the basis of the plaintiff’s claim in order to determine whether the defendant’s liability for those acts or omissions is based on the exercise of (or failure to exercise) a special statutory power.
The same point was made by the Court of Appeal in the decision of Gales Holdings Pty Ltd v Tweed Shire Council [2013] NSWCA 382; 85 NSWLR 514 (Gales Holdings), which concerned a claim in nuisance. That decision was cited by both Cavanagh J (at [698]) in Hunt Leather (No 1) and the Court of Appeal (at [177]) in the Hunt Leather (No 2) litigation. In Gales Holdings, Emmett JA (with whom Leeming JA and Sackville AJA agreed) stated at [196]-[197]:

The unanimous (Bell CJ, Leeming and Mitchelmore JJA) decision of the Court of Appeal in Hunt Leather (No 2) at [175]-[179] was to the effect that s 43A operates to impose an “an altered standard of care” where there has been a failure to take reasonable care, but that “it is no part of a claim for nuisance to show that the defendant failed to take reasonable care”.
The position is well established by following previous decisions of the Court of Appeal:
In Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 at [234], Basten JA (with whom Bathurst CJ agreed) held that s 43A “assumes the existence of a duty of care and identifies the standard to be applied in determining whether there has been a breach”.
In Roads and Maritime Services v Zraika (2016) 94 NSWLR 159 at [109], Leeming JA (with whom Gleeson and Simpson JJA agreed) followed Basten JA in Curtis stating that “Section 43A assumes the existence of a duty of care and identifies the standard to be applied in determining whether that duty has been breached”.
In Della Franca v Lorenzato [2021] NSWCA 321 (Della Franca) at [18], Basten JA (with whom Macfarlan JA agreed), held that “[a]s noted in Zraika, s 43A assumes the existence of a general law duty of care; it then fixes the relevant standard to be applied”.
None of these decisions were the subject of adverse comment by any of the Justices in Hunt Leather (No 2).
Bequick referred to its outline of opening submissions where it stated:
The only requirement for intention in the tort of trespass as it applies to land is whether the entry upon the land is intentional or negligent: Johnson v Buchanan [2012] VSC 195 at [63]-[64] (Bell J).
It is no defence for the defendant to say that it had a mistaken but reasonable belief that it was entitled to enter upon the plaintiff’s land: Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294 at [262] (Siopis J); Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59 at [55] (North, Dowsett and Rares JJ).
Justification (such as a lawful right of entry) is therefore a defence which must be proved by the defendant: Entick v Carrington (1765) 95 ER 807; (1765) 19 St Tr 1029; Plenty v Dillon (1991) 171 CLR 635; Johnson v Buchanan [2012] VSC 195 at [57]-[62]; State of New South Wales v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225 at [14] (Basten JA), [56]-[57] (Brereton JA).
There is no question that the interference with the property was intentional.
On the basis of the dicta of the Court of Appeal in a series of cases, including but not limited to Hunt Leather (No 2), Bequick submitted that s 43A of the CLA has no application to a claim not framed in negligence.

I agree that the Order and the Extension Order must be expressed in clear and unambiguous terms, particularly given the consequences of non-compliance. Both orders are to be read as a whole and in their proper context, and the threshold for invalidity on the basis of uncertainty is a high one.
While aspects of Mr Wooding’s affidavit suggested confusion, Mr Wooding in cross-examination gave evidence that he understood each of the Directions 1 to 6 of the Order and what was required to comply with them in a sequential order. I have set this evidence out earlier. However, from the sequential order of the Directions, once a report was obtained from an occupational hygienist as to the presence of asbestos on the property, it would have been clear that the fencing around the property was insufficient to that end, Mr Wooding later put black plastic around the fencing.
Bequick submitted that the Order was uncertain as to the content of Directions 1 and 2. It is not necessary to resolve whether Direction 2, which required the erection of fencing, lacked precision in circumstances where fencing had already been installed shortly prior to the making of the Order. Even if Direction 2 were affected by some ambiguity, which I have found it is not, that would not render the Order invalid in its entirety. The Directions imposed by the Order are capable of operating independently. Critically, Direction 3 required Bequick to engage an occupational hygienist to identify the location and extent of asbestos contamination and report to the Council. That requirement is clear. It establishes an intelligible and necessary step upon which subsequent direction, including the treatment, removal and disposal of asbestos logically depend.
The balance of the Order, including the requirements to engage licensed contractors to treat and remove asbestos is expressed in terms sufficiently certain to be understood by a reasonable reader. Those Directions are neither conditional upon, nor rendered uncertain by, any lack of precision in Direction 2.
In that regard, Mr Wooding’s evidence in cross-examination establishes that Bequick, through Mr Wooding, understood the substantive requirements of the Order and Extension Order, including the sequential engagement of specialists.
What work Mr Wooding had undertaken was in fact not in sequential order, namely, hiring Mr Ezzey to treat asbestos when an occupational hygienist had not provided a specialist report that would have identified where asbestos was located within and around the property.
He also understood that if he failed to comply with those orders that “the Council will enter into the premises without further notice to [Mr Wooding] or do all such things as are necessary or convenient to give effect to the term of the [Orders]”.
In this respect, the second issue raised in the cross-claim therefore fails.

As to the Council’s exercise of its power under s 678 of the Local Government Act and its decision to demolish the property, it is submitted that the Council was not required to afford procedural fairness to Bequick prior to deciding to exercise its powers under s 678 where the Council was acting to give effect to the terms of an emergency order. This is because any obligation to afford procedural fairness in respect of a council’s decision to act to give effect to an emergency order pursuant to s 678 is expressly or impliedly excluded by the Local Government Act.
As to the requirement to give notice of entry required under s 193 of the Local Government Act, the Council drew attention to the fact that notice is not required where “entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety” (s 193(3)(b)). The Council also noted that Bequick has not pleaded trespass on the basis that the demolition was in contravention of s 193.
The Council submitted that given the state of the property, in particular the extent of the asbestos contamination, it was not required to provide any notice of entry under s 193 of the Local Government Act, as the entry was required to carry out the clean-up work because of the existence or reasonable likelihood of a serious risk to health or safety.
The Council further submitted that in any event, it in fact did provide notice of the proposed entry in the Extension Order. The Extension Order is said to have notified Bequick that should it fail to comply with the Emergency Order by close of business on 15 October 2018, then the Council would “enter onto the premises without further notice to you and do all such things as are necessary or convenient to give effect to the terms of the Emergency Order”.
As to Mr Warren’s refusal to meet with Mr Wooding, the Council in their written submissions stated that this did not constitute a denial of procedural fairness (if Bequick had any right to procedural fairness). Mr Warren was not the relevant decision maker:

The starting point is that a duty to afford procedural fairness will ordinarily attach to the exercise of a statutory power where its exercise may affect a person’s rights or interests, unless that duty is excluded by statute.
Here, the relevant statute is the Local Government Act. Sections 129-135 prescribe in detail the procedural requirements that apply when a council proposes to give an order. Section 129(3)(b) provides that those requirements do not apply to an order given, or expressed to be given, in an emergency (as is the case here).
The Order in this case was issued pursuant to ss 124 and 129 of the Local Government Act. An inspection of the property on 23 August 2018 by Mr Cock of the Council revealed that the property was likely to contain asbestos which would pose a threat to public health as the asbestos is likely to have been distributed due to the recent fire at the property. The reasons for the Order also stated that the fire had left buildings in an unsafe manner and is a danger to public safety. In those circumstances, the Local Government Act displaces any additional or residual common law obligation to afford procedural fairness prior to the making of the order: Universal 1919 Pty Ltd.
As to the Council's exercise of its power under s 678 of the Local Government Act in giving effect to the Order, including the decision to enter the property and demolish the building. Those actions were taken to implement the terms of the Order. Any obligation to afford procedural fairness in respect of a council's decision to act to give effect to an emergency order pursuant to s 678 is expressly or impliedly excluded by the Local Government Act.
In the event such notice was required, the Council did provide notice of the proposed entry in the Extension Order. The Extension Order notified Bequick that should it fail to comply with the Order by close of business on 15 October 2018, then the Council would "enter onto the premises without further notice to you and do all such things as are necessary or convenient to give effect to the terms of the Emergency Order". That is said to constitute the requisite notice under s 193 of the Local Government Act.
In cross-examination Mr Wooding admitted that he on behalf of Bequick understood the Order to mean that, if he failed to comply, that in addition the Council may also choose to exercise its power pursuant to s 678 of the Local Government Act do all such things that are necessary or convenient to give effect to the Order and recover all costs incurred as a debt (T97.13-10).
The following exchange took place during cross examination of Mr Wooding in respect of the letter of 15 October 2018 and the denial of a meeting with Mr Warren (T124.22-125.12):

Given my conclusion that Bequick’s cross-claim fails, it is unnecessary to determine the remaining issues concerning damages. However, trial courts should, where possible deal with all issues in dispute so that, if an appeal succeeds, the matter does not need to be remitted for further hearing: Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7]. For that reason, I will briefly address the method of calculation of damages for the post fire demolition and the parties’ submissions concerning damages that Bequick claims in its cross-claim.
As to the method of calculation of damages, Mr Noonan in the Barnson Report stated the following:
The masonry walls on all buildings are currently unrestrained by roof framing and thus have insufficient capacity to resist lateral loading. Therefore, the walls are in danger of collapse if sufficient wind or seismic loading was to occur. The Castlereagh Street awnings are also not adequately tied down and would fall from uplift wind forces.
It is recommended that the walls are demolished when the burnt roof debris is removed. The remaining shop front framing needs to be removed at the same time, along with the awnings on Castlereagh Street.
There may be heritage conservation issues, where the demolition of the building is regarded to be not desirable. However, most of the heritage construction, including the roofs and facades, have been lost by the fire.
The remaining shell of the buildings could not be repaired economically, compared to complete demolition and re-building.
Mr Matheson in the Geolyse Report opined that “[f]rom our inspection we have determined that the structure is not in immediate danger of collapse in normal conditions, and provided public access to the site has been restricted, we believe that there is currently no immediate danger to public health or safety…pending an engineering review of stability under wind/earthquake loading.”
Both the authors of the Barnson Report and Geolyse Report agree that the masonry walls that have no lateral restraint will collapse under sufficient wind. Additionally, the Barson Report opines that the awnings on Castlereagh Street are inadequately fixed and is in danger of collapse with wind loading. He recommended that the property be demolished.
What is in dispute is whether what remained of the property post-fire should have been demolished and assuming it had been reconstructed and at what cost.
The parties both made extensive submissions and led much evidence on the issue of damages. Briefly, Bequick’s position is that it should be given damages sufficient to erect a new structure. The Council’s position is that rather than suffering damage by its remediation works, Bequick was actually put into a better position: it formerly had a ruined, asbestos-contaminated site with extensive fire damages whereas it now has a healthy and safe parcel of land.

[262] Second, even if there is no alternative available to a plaintiff other than to acquire a more valuable asset, a plaintiff may have to give credit reflecting the greater value of this asset to the plaintiff, if there is a benefit to the plaintiff which is not remote in time or speculative, and which can be quantified. In Hoad v Scone Motors Pty Ltd [1977] 1 NSWLR 88, it was accepted that the plaintiff had no reasonable alternative other than to acquire a new tractor; but since the plaintiff was shortly to sell his business including this tractor, the greater second-hand value of this tractor over that which had been destroyed would have to be deducted from the plaintiff's damages. No such deduction was made in Harbutt's “Plasticine” Ltd v Wayne Tank & Pump Co. Ltd [1970] 1 QB 447, where the plaintiff rebuilt a destroyed factory; but there was no suggestion that the new factory would be sold in the foreseeable future. Nor, apparently, was there any evidence or even any suggestion that there would be gains by way of productivity or economies of maintenance of the new factory: had there been evidence to that effect, the result would I think have been different. Similarly, in Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd [2001] NSWCA 313, there was no deduction where a pavement with a life expectancy of twenty years collapsed after four years, and was replaced by one with a similar life expectancy: the prospect that, about sixteen years in the future, the new pavement would probably continue for four years longer than the original pavement should have done, was considered too remote and speculative. Had the life expectancy of the asset that failed after four years been (say) eight years rather than twenty years, I think the result would have been different; but in my opinion the deduction from damages would have been substantially less than 50%, because the benefits would have become available between four and eight years in the future, and been less than 100% certain.

Mr Luscombe is a building estimator who wrote two reports on damages dated 2 April and 5 July 2024. He gave conclave evidence together with Mr Fares, quantity surveyor who also prepared reports on behalf of the Council and was called to provide expert evidence for Bequick. Mr Luscombe’s curriculum vitae states that he has over 45 years’ experience in the building industry. He began his career as an apprentice carpenter and joiner at about which time he obtained Certificates of Technology in Building Construction and in Building Estimating. He has worked on and been involved with building projects ranging from small domestic projects to large multi storey buildings in the capacities of tradesman, project estimator, project manager, contract administrator and principal builder. He was first registered as a building practitioner with the Victorian Building Practitioners Board in 1988 and held both unlimited Domestic and Commercial Registrations until 2016. He established his company, Luscombe Consulting Pty Ltd in 1993 and continues to act as its director and principal. Luscombe Consulting assists owners, architects, builders and sub trades with preparation of building cost estimates and bills of quantities.
On 2 April 2019, Mr Luscombe provided Bequick a building cost estimate for the reconstruction of the building to a post-fire condition. The estimated cost was $841,945.01, including a builder’s margin and GST (a builder’s margin is the percentage or mark-up that a builder adds to the cost of construction works, materials, and subcontractors).
On 5 July 2024, Mr Luscombe provided a further report and calculated a building cost estimate of $1,243,168.61 including builder’s margin (15%) and GST. As with the 2 April 2019 estimate, this was the cost estimate for a proposed reconstruction up to the post-fire stage (not the pre-fire stage). The increase since the 2 April 2019 estimate is said to arise from the costs of labour in materials as increased in the past five years. He also increased the estimate by 20% to account for the fact that Coonamble is outside a major city and in a remote region. Mr Luscombe relied on Rawlinsons Australian Construction Handbook 2024 (Rawlinsons Cost Data 2024 ed. 42).
Mr Luscombe did not inspect the property.
He based his reports on following documents:
Ground floor plan post-fire, prepared by Redden Design dated 22 January 2019.
A 3D perspectives-Post fire, prepared by Redden Design dated 22 January 2019.
A photograph of the property pre-fire.
A photo which depicts a floor plan of the building with handwritten measurements and a handwritten comment reading “30 sqm of concrete remains” which depicts the amount of concrete remaining at the rear door to the property (north of lot 63) and what concrete needed to be replaced for the proposed reconstruction of the property to the post-fire stage.
An earlier version of the two plans above, and some photographs of the property pre-fire and post-fire.
He assumed the documents as set out above are an accurate representation of the state of the property post-fire and all measurements are accurate.
Mr Luscombe’s estimation of damages is summarised below (CB, p 503):

Bequick submitted that an important part of the context in which this question arises is that the Council’s unlawful demolition of its property has deprived the Court of expert evidence on the structural integrity of the walls.
Bequick submitted that the evidence available on this question does not establish that the walls that remained standing after the fire were structurally unsound.
The Barnson Report stated that it had “not [been] based on any detailed internal inspection, except for that visible from the street” (CB, p 705). That report did not state that the brick walls were inherently unsound as a consequence of the fire, but that the walls were “in danger of collapse, if sufficient wind or seismic loading was to occur” (CB, p 713). If lateral loading was restored to the walls as part of a reconstruction exercise, this problem would have been ameliorated.
Neither Mr Wooding nor Ms Redding noticed structural damage to the bricks, such as cracking. Nor did Mr Newbold give such evidence.
Photographs after the fire and the video of 7 November 2018 did not show any such cracking, compared with some scorching to part of some walls and some peeling/bubbled paint.
Mr Newbold’s evidence in his affidavit that the walls fell easily is of no probative significance in the light of his acceptance in cross-examination that the walls of an ordinary structure would have fallen easily when confronted with a 20 tonne excavator, and which he agreed was a “very powerful piece of machinery”, pictures of which are in evidence.
The Geolyse Report opinion that “the structure is not in immediate danger of collapse in normal conditions”.
The Council submitted that the Geolyse Report does not assist Bequick in that respect. The conclusion of the structural engineer, at its highest, Mr Matheson opined that the structure was not in immediate danger of collapse, and that there was no immediate danger to public health or safety so long as public access to the site is restricted. He also recommended that an engineering review of stability under wind and earthquake loading be carried out, but that was not done. Further, Mr Matheson's opinion must be given no or little weight in circumstances where he was not called by Bequick to give expert evidence in the proceedings.
Bequick submitted that Mr Fares did not in cross-examination refer to his own opinion that the walls had suffered damage. Bequick submitted that the opinion expressed in his report is of no weight because, inter alia, first he did not have the qualifications to express that opinion. His curriculum vitae discloses no engineering qualifications or memberships, but only degrees in interior design and quantity surveying; and the relevant opinion was one within the field of a structural engineer. The requirements for registration to practice as a structural engineer in NSW (reg 34 and Sch 2, cl 33 of the Design and Building Practitioners Regulation 2021 (NSW)) is that they have a degree or equivalent in civil or structural engineering.
Secondly, Bequick his opinion is based on an assumption that the fire against the walls of the property was a sufficient heat for more than 90 minutes. This assumption is not correct because:
Mr Wooding gives evidence that says he was notified of the fire at 12:30am and that the roof collapsed within 30 minutes of the fire entering onto the property.
The photographs taken before the fire do not show a highly flammable load against the walls, with the building being empty. The flammable material appears to have been in the roof only, being Oregon wooden trusses and that burned relatively quickly.
Mr Fares appears to make his assumption that the duration of the fire exceeded 90 minutes based on the Accident/Vandalism Report which states that Peter Hurst (the off-duty Council employee) attended the fire at 1:00am and that site handover occurred at 4:10am. This is a misreading of that document. Mr Cock signed the document at 4:10pm. This is confirmed by the fact that the fire truck was present later in the day in broad daylight. In any event, the fact that the fire brigade turned official “handover” of the site to the Council does not mean that was the time the fire stopped burning. It is much more likely, it is submitted, that the fire brigade only hand over responsibility of the property after it felt there was no immediate danger, well after the last embers had been extinguished.
During the hearing, the Council submitted that Mr Fares made his assumption about the fire against the walls based on the technical data and specifications of brick fire rating which is outlined in the research material in Appendix H of the Council Expert Report.
Bequick further submitted that the Court could not be satisfied that what remained of the walls and slab of the property was structurally unsound, apart from the need to eventually provide them with some lateral loading. The walls had stood for over two months and did not collapse in the vicinity of a 20 tonne excavator and 12 and 25 tonne trucks until they were demolished. Nor did any witness’ report that the bricks themselves were damaged. Mr Newbold gave evidence to the contrary. In the event that the Court finds, contrary to these submissions, that the walls of the property were not structurally sound after the fire such that they required demolition (and not just the restoration of lateral loading previously provided by the roof), and that as a consequence that Bequick is not entitled to the scope of work assessed by Mr Luscombe, Bequick submitted that even on such a scenario, it is entitled to damages representing the loss of its bricks and their cartage (items 63 and 64 of its Scott Schedule (CB, p 135)), plus statutory interest.

The Council repeated its position that Bequick is not entitled to any compensatory damages in respect of the Council’s actions, because the Council’s actions conferred a benefit on Bequick as the owner of the property. Had the Council not carried out the works, Bequick would have had to carry out that work at its own cost. By the Council carrying out such work, Bequick has avoided incurring the cost of doing so. The Council’s actions did not cause any physical damage or destruction to the property but rather improved the property from its damaged and contaminated state, leaving it as a clear uncontaminated site.
Mr Newbold’s evidence supports a conclusion that the brick walls and concrete slab were structurally unsound, given his observations that the concrete slab was very brittle in places and cracked, and crumbled easily, and that the brick walls “gave way” as “soon as they were touched” by the excavator. Further, he carried out his work in the only safe manner it could be carried out.
If the Council had not carried out the clean-up and demolition work on the property, Bequick would have had to do so at some stage.
If the Court finds that Bequick is entitled to compensatory damages, those damages should be measured by reference to the diminution in the value of the land and the fixtures, rather than by the cost of repair or reinstatement of the land and fixtures. That is so for two reasons.
The first reason is that the land and fixtures which were cleaned up and demolished by the Council were very old structures and in a severely damaged and contaminated state, and therefore it is difficult, if not impossible, for the Court to assess the cost to reinstate those severely damaged and contaminated structures on the property in their state immediately before demolition. The quantity surveyor’s evidence does not assist the Court with that task because, as Mr Luscombe acknowledged in his evidence, the quantity surveyors have estimated the cost to construct a brand new building, rather than the cost to reinstate the severely damaged and contaminated remnant walls and concrete slab which were cleaned up and demolished by the Council (T183.31-35).
The second reason is that , if the quantity surveyors’ evidence as to the cost of rectification were accepted, then awarding damages measured by reference to the cost of repair or reinstatement of those severely damaged and contaminated structures on the property which were cleaned up and demolished by the Council would be unreasonable and entirely disproportionate to the value of the property. Bequick purchased the property for $150,000 in November 2016. That is the approximate capital value of the property (accepting that the property may have appreciated in value since 2016 but post-fire it was no longer in that state). However, the parties’ quantity surveyors estimate that it would cost very much more than $150,000.00 to reinstate the structures on the property which were cleaned up and demolished by the Council. Mr Luscombe estimates such cost to be $1,243,168.62, while Mr Fares estimates such cost to be $508,221.56. That being the case, it would not be reasonable in the circumstances of this case to award damages to Bequick measured by reference to the cost of repair or reinstatement of the land and fixtures.
Rather, the Court would award damages to Bequick measured by reference to the diminution in the value of the land and the fixtures. On the most favourable assessment to Bequick, given the purchase price of the property in November 2016, such damages would be approximately $150,000.00-$200,000.00, being the approximate capital value of the property as at the date of the trespass (assuming it appreciated in value by 25% in the 2 years following its purchase).
If the Court were to award damages to Bequick measured by reference to the cost of repair or reinstatement of the land and fixtures, and quantifies such damages by reference to the quantity surveyors’ evidence, Bequick submitted that Mr Fares’ evidence ought to be rejected because he has made an incorrect assumption regarding what survived the fire, and his reasons for disallowing certain items are not convincing.
The Council, however, submitted that the Court should prefer Mr Fares’ evidence to Mr Luscombe’s evidence. That is because Mr Fares’ estimate of the reinstatement costs is more reasonable than Mr Luscombe’s estimate. That being the case, the Court would award damages in the sum of $508,221.56 (at most), less the costs incurred by Council in carrying out the clean-up and decontamination of the property in the sum of $148,106.61), such damages being $360,114.95 (at most). If Bequick is registered for GST, the Court would not award GST and so would deduct an additional amount for the GST component of Mr Fares’ estimate (being $46,201.96).

Coonamble Shire Council v Bequick Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Background

The statutory powers of the Council

The Council’s steps to make safe the property

Pleading framework

The defence and cross-claim

Issues in dispute

Evidence

The evidence and the expert reports

The Barnson Report

The Clifton Report dated 4 October 2018

First Affidavit of Gary John Wooding dated 5 July 2024

The property on the corner of Castlereagh and Aberford Street Coonamble

Ms Redden’s introduction and early involvement on the property

2 August 2018 site visit to the property

Post-fire and the temporary fencing around the fire-damaged properties

The Orders

Mr Wooding’s Compliance with the directions of the Order

Specified date

Direction 1

Direction 2

Direction 3

Direction 4

Directions 5 and Direction 6

Photograph of Aberford Street footpath on 9 September 2018

13 September 2018 – post fire inspection

Council's extension of the earlier Orders dated 5 October 2018

Resolution 4098 and the Warren Report

John Byrne of Byrne Demolition

Bequick's response dated Monday, 15 October 2018

Follow up with Byrne Demolition

Learning of the Council's intention to demolish

Demolition starts

Geolyse Structural Engineers - site inspection and video on 7 November 2018, and report dated 12 November 2018 (after the demolition was in progress)

The Council invoice no. 100115 dated 8 January 2019 - $137,092.24

January 2019 – updated drawings

January and February 2019 – the Council communications with the NSW EPA

13 January 2021 - subsequent calculations of Walton Smith Consultants

The Council’s minutes dated 10 March 2021

The Council’s invoice no. 10621 dated 20 May 2021 - $148,106.61

Affidavit of Chris Newbold dated 26 March 2025

Disposal of sandstock bricks

(1) First issue: Civil Liability Act, s 43A

Consideration of Hunt Leather

Hunt Leather in the High Court of Australia

Council’s submissions

Bequick’s submissions

Resolution

(2) Second issue: validity of the Orders

The Council’s submissions

Bequick’s submissions in reply

Resolution

(3) Third issue: compliance with the Council’s two orders

Bequick’s submissions

The Council’s submissions

Resolution

(4) Fourth issue: a denial of procedural fairness

Bequick’s submissions

The Council’s submissions

Resolution

Result

Damages

Bequick’s submissions

The Council’s submissions

The expert reports – damages

Bequick’s Expert Reports

Council’s Expert Report dated 5 November 2025

Bequick’s Expert Report dated 28 March 2025

Joint report of quantum experts dated 23 July 2025

What was the existing post fire-items in dispute?

(1) The structural integrity of the wall