Council of the City of Sydney v Karimbla Properties

EX TEMPORE Judgment 1The applicant, Council of the City of Sydney, moves on its notice of motion filed on 2 July 2004 for orders that Trenton Terry Jones be joined as the third respondent, that it have leave to file and serve an amended summons, and that it file and serve points of claim. At the conclusion of the hearing of the motion this morning I made the orders set out at the end of these reasons for judgment. 2The proceedings were commenced on 11 June 2014 seeking to restrain the respondents, Karimbla Properties (No 24) Pty Ltd and Meriton Apartments Pty Ltd, from carrying out building work on a large construction site at 879B, 881-891 South Dowling Street and 54A, 56-60 O'Dea Avenue, Waterloo. At the same time, Council filed a notice of motion seeking an interlocutory injunction to similar effect. Council's claim was that building work being undertaken was work for which a construction certificate was required but which had not been issued. Section 81A(2) of the Environmental Planning and Assessment Act 1979 requires that, before erecting a building in accordance with a development consent, a construction certificate must have been issued and a principal certifying authority appointed for the building work. Failure to observe the requirements of the section constitutes a breach of the Act: s 122. 3Council's notice of motion for an interlocutory injunction was dismissed on 17 June 2014 by Craig J: Council of the City of Sydney v Karimbla Properties (No 24) Pty Ltd [2014] NSWLEC 77. At the hearing before Craig J the respondents acknowledged that a construction certificate had not been issued for the work presently being undertaken, and that there was a serious question to be tried. The notice of motion was dismissed because his Honour concluded that the balance of convenience weighed against the grant of an interlocutory injunction. 4During the hearing today, by consent, I substituted Karimbla Constructions Services (NSW) Pty Ltd for Meriton Apartments Pty Ltd as the second respondent. 5A construction certificate dated 27 June 2014 was issued by Mr Jones as the principal certifying authority. Council challenges the validity of the construction certificate. Consequently, Council moves to join Mr Jones as third respondent and to amend the summons by substituting prayers for the following relief: (a)A declaration that the construction certificate was issued in breach of cl 144 of the Environmental Planning and Assessment Regulation 2000 by reason of it being issued without an initial fire safety report being received and considered, the period of 23 days not having elapsed since the plans and specifications were forwarded to the Fire Commissioner; (b)a declaration that the construction certificate was issued in breach of cl 145(1)(b) by reason of it being issued in circumstances where the proposed building (not being a temporary building) will not comply with the relevant requirements of the Building Code of Australia; (c)a declaration that the construction certificate is therefore invalid and of no force and effect; and (d)an order that the first and second respondents be restrained from carrying out any further building works without having first complied with s 81A(2) of the Environmental Planning and Assessment Act. 6Clauses 144 and 145 of the Environmental Planning and Assessment Regulation provide: 144 Referral of certain plans and specifications to New South Wales Fire Brigades (1) This clause applies to: ... (b) a building (other than a class 9a building) that is proposed to have: ... (ii) a total floor area of more than 6,000 square metres, where: (c) the building is the subject of an application for erection, rebuilding, alteration, enlargement or extension, and (d) the plans and specifications for the erection, rebuilding, alteration, enlargement or extension provide for an alternative solution to meet the performance requirements contained in any one or more of the Category 2 fire safety provisions. (2) Within 7 days after receiving an application for a construction certificate for a building to which this clause applies, the certifying authority must forward to the Fire Commissioner: (a) a copy of the application, and (b) a copy of the plans and specifications for the building, and (c) details of the performance requirements that the alternative solution is intended to meet, and (d) details of the assessment methods to be used to establish compliance with those performance requirements, which may be delivered by hand, forwarded by post or transmitted electronically, but may not be sent by facsimile transmission. (3) The Fire Commissioner must furnish the certifying authority with an initial fire safety report for the building. (4) An initial fire safety report may recommend conditions to be imposed on the erection, rebuilding, alteration, enlargement or extension of the building to which the report relates. (5) The certifying authority must not issue a construction certificate for a building to which this clause applies unless: (a) it has received an initial fire safety report for the building and has taken the report into consideration, or (b) at least 23 days have elapsed since the plans and specifications were forwarded to the Fire Commissioner but no such report has been received by the certifying authority. (6) If the certifying authority does not adopt any recommendation in an initial fire safety report: (a) because the report had not been received when the construction certificate was issued, or (b) because the certifying authority does not agree with the recommendation, the certifying authority must cause written notice to be given to the Fire Commissioner of the fact that it has not adopted the recommendation and of the reasons why it has not adopted the recommendation. (7) If the certifying authority adopts any condition recommended by an initial fire safety report: (a) it must ensure that the terms of the recommended condition have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or (b) it must attach to the construction certificate a condition in the same terms as those of the recommended condition, in the case of a condition whose terms are not capable of being so included. (8) Compliance with the requirement that the terms of a recommended condition be included in the plans and specifications for building work is sufficiently complied with: (a) if the plans and specifications are redrawn so as to accord with those terms, or (b) if those terms are included by way of an annotation (whether by way of insertion, deletion or alteration) marked on the relevant part of those plans and specifications. (9) In this clause: initial fire safety report means a written report specifying whether or not the Fire Commissioner is satisfied, on the basis of the documents referred to in subclause (2): (a) that the alternative solution will meet such of the performance requirements as it is intended to meet, and (b) that the fire hydrants in the proposed fire hydrant system will be accessible for use by New South Wales Fire Brigades, and (c) that the couplings in the system will be compatible with those of the fire appliances and equipment used by New South Wales Fire Brigades. 145 Compliance with development consent and Building Code of Australia (1) A certifying authority must not issue a construction certificate for building work unless: ... (b) the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made). ... 7The respondents acknowledge that the Court has power to allow the proposed amendments but oppose leave to amend being granted and say that it is appropriate for Council to commence fresh proceedings for the following reasons: (a)The existing summons seeks an order that the respondents be restrained from carrying out any further development at the premises until a construction certificate has been obtained for such work and a principal certifying authority has been appointed in respect of such work. After Council's motion for an interlocutory injunction was dismissed by Craig J, Mr Jones was appointed as the principal certifying authority and therefore the previous concern of absence of an independent supervisor has evaporated. In addition, since then a construction certificate has been issued by Mr Jones, which is valid until it is declared invalid. (b)The proposed amendments seek costs against Mr Jones as well as the existing respondents. The costs issue has become complicated by events to date such that it is better that any question of further costs is dealt with in fresh proceedings. 8The respondents digress to submit that they have a defence to the proceedings, which they outline. For present purposes it is unnecessary for me to consider that submission. 9The Court's power to grant leave to amend a document is found in s 61(1) of the Civil Procedure Act 2005. In considering whether to grant leave to amend, the Court must have regard to the facilitation of the just, quick and cheap resolution of the real issues in the proceedings, the dictates of justice and avoidance of multiplicity of proceedings: ss 56, 58(1)(a) and 64 Civil Procedure Act. 10Section 56 provides: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. ... 11In deciding whether to make an order for the amendment of a document, the Court "must seek to act in accordance with the dictates of justice": s 58(1)(a)(i). For the purpose of determining what are the dictates of justice in a particular case, the Court must have regard to s 56 and 57, and may have regard to other prescribed matters to the extent it considers them relevant: s 58(2). One such matter is the degree of expedition with which the parties have approached the proceedings. Section 57 deals with case management. It provides that, for the purpose of furthering the overriding purpose referred to in s 56(1), proceedings are to be managed having regard to the following objects: the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. 12Section 64 provides: 64 Amendment of documents generally (1) At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. ... 13The nature of the proposed amendments are such that they are closely related to the currently alleged cause of action. Council has approached the proceedings and its motion expeditiously. In my opinion, the just, quick and cheap resolution of the real issues, the dictates of justice and the avoidance of multiplicity of proceedings lead to the conclusion that leave to amend should be granted. 14That being so, Mr Jones consents to being joined as the third respondent. He seeks a protective order against exposure to costs of the proceedings prior to his joinder. I think that is reasonable. 15The proposed amended summons does not comply with the requirement for a judicial review summons in r 59.4(c) of the Uniform Civil Procedure Rules 2005, which are noted in the Court's Practice Note - Class 4 Proceedings at [8]. Council should attend to this before filing its amended summons. Rule 59.4 provides in relation to a summons for judicial review: 59.4 Content of summons The summons must state: (a) the orders sought, and (b) if there is a decision in respect of which relief is sought: (i) the identity of the decision-maker, and (ii) the terms of the decision to be reviewed, and (iii) whether relief is sought in respect of the whole or part only of the decision and, if part only, which part, and (c) with specificity, the grounds on which the relief is sought. 16Council has a pending notice of motion seeking expedition of the proceedings that Mr Jones has not yet had an opportunity to consider. By consent, I will stand that notice of motion over for hearing to next week and I will make directions for affidavits relevant to it. Given the flexible procedures in this Court, the parties should consider whether a more practical course is simply to agree to the Court fixing trial dates as soon as practicable, with directions for pre-trial evidence and submissions. 17Council raises an issue concerning whether part of a notice to produce issued to Council by the respondents should be set aside. I will stand that over to the hearing of the notice of motion for expedition. 18The orders of the Court are as follows: (1)The applicant is to amend its summons and file and serve the amended summons and points of claim by 2 pm on 9 July 2014. (1A) Leave is granted to the applicant to join Trenton Terry Jones as third respondent to the proceedings. (2)The applicant is to file and serve any further affidavits in support of the notice of motion for expedition by 2 pm on 9 July 2014. (3)The applicant is to file and serve a statement identifying the affidavits on which it intends to rely in support of the notice of motion for expedition by 2 pm on 9 July 2014. (4)The respondents are to file and serve any affidavits in reply to the notice of motion for expedition by 10 am on 14 July 2014. (5)The applicant is to serve the third respondent with the notice of motion for expedition and affidavits by close of business today (8 July 2014). (6)The notice of motion for expedition is listed for hearing at 9 am on Tuesday, 15 July 2014. (7)The applicant is to produce documents responsive to paragraphs 1-3 of the first and second respondents' notice to produce to all respondents by close of business 9 July 2014. (8)The third respondent is not liable for costs of the proceedings prior to his joinder to the proceedings. (9)The costs of the applicant's notice of motion dated 2 July 2014 are costs in the cause. (10)Production of documents in respect of paragraphs 4-8 of the first and second respondents' notice to produce dated 3 July 2014 is stood over to the hearing of the notice of motion for expedition. (11)Liberty to restore on 24 hours notice.