Dowling v Haralambides

Events following the commencement of proceedings

1. By letter dated 2 May 2014, solicitors acting for Mr Haralambides responded to the letter of 30 April 2014 written to him by the solicitors acting for Mr Dowling. That letter was received by Mr Dowling's solicitors on 5 May 2014. The solicitors acting for Mr Haralambides denied that his development was not "complying development"; asserted that "all works" were pursuant to the State policy; denied that any stop work order had been issued by any relevant authority, including a certifying authority and stated that any proceedings commenced on behalf of Mr Dowling would be defended.
2. The summons issued on behalf of Mr Dowling was returnable before Court on 9 May 2014. On that date directions were made in the form of short minutes of order signed by the solicitors acting for the parties. Those directions required that the defendants serve their lay evidence in chief, together with additional documents and points of defence by 23 May 2014 with further directions made for the subsequent service of any affidavits in reply by the applicant and a direction as to the joint conferencing of experts retained by the parties. The first step required by those directions, namely the step to be taken by the respondents, was never taken.
3. In a telephone discussion between solicitors on 8 May, the solicitor then acting for Mr Haralambides maintained, somewhat forcefully, that the CDC was valid. He repeated the position he had stated in this regard in a discussion between the same solicitors on 12 May.
4. On 14 May 2014 Mr Boyce issued a notice to Mr and Mrs Haralambides under s 121H of the EPA Act, stating his intention to give a notice under s 121B of that Act, requiring the cessation of building work at the Property. The terms of the notice indicated that work was to cease "as the Complying Development Certificate may have been issued not strictly in compliance with the State Environmental Planning Policy of 2008". In the alternative, it was stated that an application may be made to the Council "for a Development Approval for Council's consideration [sic]". The evidence does not indicate that any building work was carried out after this date.
5. That notice was followed by an order given by the Council on 19 May 2014. The order was said to be given in accordance with order No 19 in the Table to s 121B(1) of the EPA Act. The order stated that building work was being carried out in contravention of the Act and that Mr Haralambides, to whom the order was addressed, was required to cease carrying out "all building work at the subject premises". The reasons stated for the order recite the history of CDCs that were issued, the applicable planning instruments at the time at which both the original certificate was given and at the time at which the modifications of that certificate took place, with the reasons ultimately contending that building work was only able to be carried out "pursuant to development consent granted by the Council pursuant to the EP&A Act".
6. The order given by the Council on 19 May 2014 was preceded by a letter from its solicitors on 15 May 2014 to the solicitors then acting for Mr Haralambides. In their letter, the Council's solicitors indicated their awareness that the present proceedings had been commenced, reciting the history of granting an amending CDC for work at the Property and the applicable planning instrument at the time of each grant. By their letter, the Council's solicitors indicated that there were issues as to the validity of the CDC and invited the solicitors for Mr Haralambides to provide any information "or arguments" in relation to the validity of the CDC. Again, the evidence does not disclose whether there was a response to that letter.
7. The parties agreed to attend a conciliation conference on 22 May 2014. This conference was convened by the Council and both Council officers and the Council's solicitor were present at that meeting. Although the evidence discloses the prospect of Mr Haralambides submitting a development application to the Council for work yet to be done as well as an application for a building certificate under s 149(a) of the EPA Act for building work already undertaken, agreement was not then reached as to the detail which would result in a resolution of the proceedings.
8. No doubt in anticipation of the settlement discussions to take place on 22 May, on 21 May the solicitors acting for Mr Dowling wrote to the solicitors acting for Mr Haralambides offering to settle the proceedings. That offer was expressed to be one made in accordance with the principles of Calderbank v Calderbank [1975] 3 All ER 333 proposing that Mr Dowling discontinue the present proceedings on the basis that an undertaking be provided by Mr Haralambides not to carry out any works on the Property that required development consent without first obtaining that consent and also agreeing to pay Mr Dowling's costs "as agreed or as assessed".
9. Following the settlement discussions that took place on 22 May, plans and documents showing the existing dwelling on the Property together with those plans that were the subject of each of the modifications made to the CDC were sought from Mr Haralambides through his solicitors. They were said to be required by Mr Dowling to enable him and those advising him to assess the impact of proposals that had been the subject of discussion.
10. The plans and documents sought were not provided initially and so their production was the subject of a direction from the Court when the proceedings were listed for directions on 18 July 2014. At the request of the parties, the proceedings were then stood over to 1 August 2014 for further directions.
11. There was a further meeting between the parties and representatives of the Council in an endeavour to resolve the dispute on 31 July 2014. While Mr Haralambides proposed to further amend his plans so as to reduce the extent of building proximate to the south-eastern corner of the Property, he also proposed that the Council be the Principal Certifying Authority for the modified CDC that was required. It appears that the Council was unwilling to accept that role, apparently because of the opinion it held, expressed by it in the correspondence to which I have earlier referred, as to the legality of a complying development certificate to authorise the building work yet to be undertaken.
12. When the proceedings were before the Court on 1 August, the parties jointly requested that there be a further adjournment for one week on the basis that they were in discussion with a view to resolving the proceedings.
13. Shortly thereafter, Mr Haralambides retained the services of his present solicitors. Upon being retained, they sought a further adjournment for one week in order to acquaint themselves with the matter. That course was not opposed by Mr Dowling.
14. Having familiarised themselves with the proceedings and their background, the present solicitors acting for Mr Haralambides advised both Mr Dowling's solicitors and those acting for the Council that a development application would be made to the Council for consent to carry out building alterations and additions yet to be carried out and that an application for a building certificate relating to work already carried out would also be made. They further indicated that upon development consent being granted, they would accept a condition that the CDC be surrendered.
15. Mr Dowling agreed to that course. As a consequence, he consented to a direction made by the Court on 15 August 2014 for the dates by which those applications were to be made to the Council and otherwise to the adjournment of the proceedings for a sufficient time to enable the Council to deal with those applications.
16. The Council refused both applications made to it by Mr Haralambides. He appealed to this Court from those decisions under s 97 of the EPA Act. Following agreement reached with the Council at a conference convened under s 34 of the Land and Environment Court Act 1979 (NSW) his appeals were upheld on 8 May 2015 when development consent was granted for work to be carried out in accordance with further amended plans that had been provided to the Court. Pursuant to Condition 5 of the consent then granted, the CDC, as modified, was surrendered by Mr Haralambides on 26 May 2015.
17. Following surrender of the CDC, the solicitors acting for Mr Haralambides invited Mr Dowling to discontinue the present proceedings. They correctly observed that as the proceedings challenged the validity of the CDC, its surrender had effectively removed the subject matter of the proceedings, with the consequence that there was no utility in their further prosecution. The letter inviting discontinuance stated that consent would be given to that course on the basis that each party bear its own costs.
18. Mr Dowling, through his solicitors, promptly accepted that discontinuance was appropriate for the reasons stated on behalf of Mr Haralambides. However, his solicitors contended that an order for costs of the proceedings in his favour should be made, having regard to the circumstances giving rise to commencement of the proceedings. The impasse thus reflected in the correspondence gave rise to the present motion for leave to discontinue the proceedings.

Relevant principles

1. I have earlier quoted the provisions of r 42.19(2) of the UCPR. There is no issue between the parties that the subrule identifies the default position as to the payment of costs when proceedings are discontinued. However, Mr Haralambides accepts that the Court may decide, in the exercise of its discretion, to depart from the default costs order provided by the subrule. For his part, Mr Dowling accepts that he must demonstrate "some sound positive ground or good reason for departing from the ordinary course" (Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365 at [54]).
2. The application of the rule was considered by the Court of Appeal in Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32. There, Basten JA said at [70]: " … the discontinuing plaintiff must be the moving party on an application for an alternative costs order. If it is necessary to establish a factual basis for such an order, the plaintiff will bear the onus of proving the relevant facts. Similarly, if it is necessary to draw particular inferences from primary facts, the plaintiff will also bear the burden. Finally, the plaintiff will bear the burden of persuading the court that some other order is appropriate".
3. The applicable principles for application of the rule were later discussed by Preston CJ in LEC (Beazley P and Ward JA agreeing) in Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; 199 LGERA 424. As his Honour observed at [23], the "mere fact" that a discontinuing applicant may have achieved practical success, in that the result that pertains at the time of discontinuance is that sought in the proceedings, does not "by itself and without some extra circumstance," ordinarily justify the making of a costs order in favour of the discontinuing plaintiff.
4. Later in his reasons in Ralph Lauren his Honour addressed the circumstance that an extra-curial supervening event caused by a defendant has, in a practical sense, addressed the subject matter of the proceedings, thereby rendering their continued prosecution inutile. That describes the circumstance in the present case, as it was the surrender of the CDC by Mr and Mrs Haralambides, consequent upon obtaining development consent, that addressed the subject of Mr Dowling's proceedings. In circumstances of that kind, his Honour said at [31]: "Notwithstanding that the defendant's action caused the proceeding to become futile, unless there was some unreasonableness in the defendant so acting, the proper exercise of the costs discretion may still be to make no order as to the costs of the proceeding."
5. As would be evident from the fact that the making of an "otherwise order" under the rule involves the exercise of a discretion, the facts or circumstances that will demonstrate "unreasonableness" on the part of a defendant or those that will demonstrate the "extra circumstance" beyond practical success are not, as a matter of principle, capable of precise specification. Basten JA observed in Australiawide Airlines at [65] that while an entitlement to bring proceedings in the exercise of a statutory right so to do would not, of itself, be sufficient to avoid the default order, demonstration of an additional factor "such as that conduct of the defendant led to the reasonable belief [by the plaintiff] that litigation would be necessary to enforce its right" may be sufficient to avoid the default order. Implicit in that observation is that the conduct of a defendant leading to the commencement of litigation is relevant to be considered when exercising the available discretion. So much has otherwise been acknowledged in the decided cases (Foukkare v Angreb Pty Ltd [2006] NSWCA 335 at [66]).
6. Both parties referred to the decision of McHugh J in Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; 186 CLR 622. His Honour's judgment at 625 is the source of the principle that where both parties have acted reasonably in commencing and defending proceedings and did so until such time as the continued prosecution of those proceedings became futile, the proper exercise of the cost discretion will usually result in the Court making no order as to costs. That statement of general principle must be understood in the context of other observations made by his Honour earlier in the judgment. At 624 his Honour said: "In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties … . In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation."

The applicant's submissions

1. Mr Dowling first submits that he did not act precipitously in commencing the present proceedings. He attempted to exhaust the process of negotiation before so doing. Recognising that the sensitivity of the issue with Mr Haralambides may have impeded the process of resolution, Mr Dowling retained Mr Grech to negotiate a resolution, appreciating that this may more readily be achieved by discussion between professionals rather than on a direct neighbour to neighbour basis. That process involving Mr Grech was allowed to run between February 2014 and May 2014 before the present proceedings were commenced.
2. Apart from the fact that Mr Dowling engaged Mr Grech, on a professional basis, to negotiate a resolution of the dispute, the background against which the present proceedings were commenced must be considered. First, the floor plans depicting the proposed alterations shown to Mr Dowling did not disclose the existence of a balcony on the southern and eastern elevation of the dwelling.
3. Secondly, shortly after work commenced in February 2014, the building work then observed by Mr Dowling was not work that was consistent with the plans he recalled seeing. His appreciation that this was so is borne out by the observations and stated actions of Mr Smith, the then building certifier.
4. Thirdly, Mr Haralambides did not comply with undertakings given or directions made to stop work prior to the commencement of proceedings. An oral request to stop work was originally made by Mr Smith at sometime prior to 20 February 2014. When work was observed to be ongoing, notwithstanding that request, on 21 February Mr Smith made that request in writing. Those requests were not observed, at least initially.
5. Inspection of the Property by a Council officer on 21 February confirmed that work was continuing at that time. However, as a result of the request then made by that officer, work did cease for a time.
6. On or about 27 February, an undertaking was given that all building work on the Property would cease subject to Mr Haralambides taking delivery of pre-ordered items. Notwithstanding that undertaking, building work was being carried out on 26 March. Neither Mr Grech nor the Council was advised that this would occur. Moreover, not only was this work being carried out contrary to the undertaking given to the Council on about 27 February, it was inconsistent with the letter dated 13 March from the solicitor then acting for Mr Haralambides to the Council that no further work would be undertaken pending resolution of "issues" with Mr Dowling and with Mr Smith as the (then) Principal Certifying Authority.
7. On 23 April, building work was again observed to be taking place on the Property. No indication had been given to Mr Grech, Mr Dowling or the Council that building work would resume in earnest.
8. As a result of the onsite meeting on 30 April, involving Mr Grech, Mr Dowling's present solicitor and Mr Boyce, the then newly-appointed Principal Certifying Authority, agreed to direct Mr Haralambides to do no more work on the proposed balcony addition to the dwelling on the Property. That direction was, later that day, confirmed as having been accepted by Mr Haralambides. Nonetheless work was observed being undertaken during the afternoon of that day in the area of the proposed balcony including the placement of a steel beam. One of the purposes served by that beam was to provide support for the balcony, as was later confirmed by the solicitors then acting for Mr Haralambides.
9. Fourthly, on 30 April 2014, the solicitors acting for Mr Dowling wrote to Mr Haralambides, asserting that the CDC was invalid and that further works could not be undertaken without first obtaining a development consent under the EPA Act. The letter sought confirmation that no further work would be done relying upon the CDC. That letter was provided electronically to Mr Dowling who, in turn, delivered it to the Property that evening. At the time at which proceedings were commenced on 2 May 2014, no response had been received to that letter from or on behalf of Mr Haralambides.
10. Those events, so it is submitted, justified Mr Dowling commencing proceedings when he did. By so doing Mr Dowling ultimately achieved practical success which, having regard to the conduct of Mr Haralambides prior to commencement of proceedings was very unlikely to be achieved otherwise. That is demonstrated by the fact that it was not until August 2014 that an application for development consent and an application for a building certificate were proffered and accepted to be the subject of direction by the Court. The proposed development application was to include an undertaking to surrender the CDC.
11. While Mr Dowling was content to take the reasonable approach of allowing the development application process to take its course both before the Council and, following the latter's refusal of that development application, by the Court in Class 1 proceedings, it was not until the Court made an order granting development consent in the latter proceedings and the subsequent surrender of the CDC by Mr Haralambides that the present proceedings ceased to have practical utility.
12. Had Mr Haralambides embarked upon the course that he ultimately took between February and May 2014 when the subject matter of the proceedings had been made known to him and his advisers, commencement of the proceedings would have been unnecessary.
13. In the circumstances identified, Mr Dowling acted reasonably in commencing proceedings when he did. Conversely, Mr Haralambides did not act reasonably in maintaining the position that he took both prior to and, for a time, after the proceedings were commenced before embarking upon the course that resulted in practical success for Mr Dowling. In those circumstances it is appropriate to make an order for costs in favour of Mr Dowling.

Submissions of the first and second respondent

1. Mr and Mrs Haralambides submit that at all times they acted reasonably in their dispute with Mr Dowling. They were entitled to rely upon the CDC authorising the work they proposed to carry out until such time as that CDC was determined by the Court to be invalid. At no time have they conceded its invalidity. However, they elected to seek development consent and a building certificate instead of contesting the proceedings instituted by Mr Dowling. It would be wrong to characterise their actions in taking that course as a capitulation to the challenge made by Mr Dowling to the CDC.
2. Further, Mr and Mrs Haralambides endeavoured to accommodate the real concerns of Mr Dowling prior to the proceedings being commenced. They did this through their architect who conducted negotiations for amendment of their plans with Mr Grech.
3. Moreover, when they met for settlement discussions with Mr Dowling on 22 May 2014 the dispute was "capable of resolution" but was frustrated by the quantum of legal costs claimed by Mr Dowling's solicitor as a condition of settlement.
4. The assertion by Mr Dowling that building work being undertaken on 30 April 2014 was, contrary to the undertaking given by Mr and Mrs Haralambides, being directed to the proposed southern balcony is incorrect. Mr Boyce informed Mr Grech that this was the case in the evening of 30 April and that the steel beam that was observed being installed was to support the upper floor roof.
5. The grant of development consent by the Court in May 2015 was truly a supervening event, not a capitulation on the part of Mr Dowling. Consistently with the decided cases, the fact that the supervening event was instigated by Mr and Mrs Haralambides is not a circumstance that, of itself, supports the making of an order for costs in favour of Mr Dowling. Their conduct in dealing with Mr Dowling both prior to and after commencement of proceedings was reasonable.
6. Moreover, the Court would not try a hypothetical case. In the absence of a full hearing, the Court could not determine who would win and award costs on that basis. Even if the matter did proceed to trial and a breach of the EPA Act established, broad discretionary considerations would be brought to bear in determining any final order. As a consequence, it cannot be assumed in determining the present application that an order would have been made in favour of Mr Dowling should the matter have proceeded to trial.

Consideration

1. Substantially for the reasons advanced by Mr Dowling, I have concluded that he should have an order for payment of his costs of the proceedings. The fact that Mr and Mrs Haralambides sought and ultimately obtained the grant of development consent, conditionally upon the surrender of the CDC, had the practical consequence that Mr Dowling succeeded in obtaining the result that his proceedings sought to achieve.
2. I accept that without "some extra circumstance", the fact that practical success has been obtained at the instigation of Mr and Mrs Haralambides would not, of itself, be sufficient to justify the making of the order proposed by me (Ralph Lauren at [31]). However, my assessment of the evidence earlier outlined satisfies me that it was reasonable for Mr Dowling to believe that the only means by which he could secure performance of the entitlement he asserted, namely to have the building work proposed by Mr Dowling authorised by the grant of development consent under s 80 of the EPA Act, was by commencing the present proceedings (Australiawide Airlines at [65]).
3. I do not accept that the conduct of Mr and Mrs Haralambides leading up to and immediately following the commencement of proceedings on 2 May 2014 was, in the circumstances, reasonable. Although the practical focus of Mr Dowling and his architect, Mr Grech, was upon the proposed southern balcony and its eastern extension close to Mr Dowling's property, Mr Grech had signalled as early as mid-February that reliance upon a CDC for the proposed building work was in question. Moreover, the action of Mr Smith, the original Principal Certifying Authority, in requiring that works stop, followed by the request to the same effect from the Council, supports the doubt then expressed as to the lawfulness of the CDC to authorise the work being carried out on the Property.
4. Notwithstanding the written request from Mr Smith to stop work, building work continued until an officer of the Council visited the Property and reiterated that request.
5. I have earlier recorded that the latter request was closely followed by a visit to the Council by both Mr Haralambides and his then solicitor. I have also recorded the undertaking then given that no further building work would take place pending resolution of issues with both Mr Dowling and Mr Smith, an undertaking subsequently confirmed in writing by the solicitor. Yet, without resolution of the dispute and without notice to either Mr Dowling or the Council, building work on the property was resumed on 26 March. There is no evidence that at that time Mr Smith had withdrawn his request that work stop nor had there been any modification of the CDC by Mr Boyce. It is true that during that period discussions were taking place between Mr Grech and Mr Vourtzoumis. However, no-one suggests that the "issue" between the parties had been resolved.
6. While the level of work diminished for some weeks after 26 March, substantial work was observed to resume on 23 April. Although a modified CDC had by that time been issued by Mr Boyce, matters first raised in February by Mr Grech as to the validity of the CDC as issued and the use of a complying development certificate to authorise the building work were issues that remained unanswered by or on behalf of Mr Dowling. The resumption of significant work and the absence of response resulted in the meeting at the property on 30 April involving Mr Boyce, Mr Grech and Mr Dowling's solicitor.
7. Again, an undertaking was given at that meeting that no work relating to the proposed balcony would be undertaken. While there is a dispute as to whether the building work undertaken later on that day was directed to the proposed balcony, there were reasonable grounds for Mr Dowling to believe that it was so directed. The installation of the beam then installed was, according to the engineering plans obtained by Mr Grech, a component of the balcony structure, a fact subsequently confirmed by the former solicitors acting for Mr Haralambides, albeit that the beam is said also to serve structural support for an awning.
8. Reference has earlier been made to the letters sent on 30 April by Mr Dowling's solicitors both to Mr Boyce and to Mr Haralambides not only requesting the cessation of work but indicating the legal basis upon which the CDC was said to be invalid. Those letters were followed on 1 May by a letter from the Council to Mr Boyce referring both to the "serious allegations" raised on Mr Dowling's behalf and also stating the concern that the Council itself held as to the validity of the CDC. There was no immediate response to this correspondence, yet work was continuing.
9. In short, as at 2 May 2014 when the proceedings were commenced, serious questions had been raised as to the validity of the CDC to authorise building work on the property not only on behalf of Mr Dowling but also by the Council. Those questions had not been addressed in any communication directed to the Council, to Mr Dowling or to those acting on his behalf. Related to that circumstance is the fact that requests from both Mr Smith and the Council to stop all building work had not been observed, in that work resumed after those requests had been made without any assertion that the requests had been withdrawn or varied. Further, an undertaking given to Mr Dowling through Mr Grech, first that all work would stop and then that balcony work would not be undertaken until issues between the parties had been resolved, were undertakings that were not observed.
10. These are the circumstances that, to my mind, rendered it reasonable for Mr Dowling to commence the present proceedings. Recourse to the Court was, in the circumstances, the only reasonable basis upon which he was likely to establish and enforce the breach of the law that he asserted.
11. Events immediately following the commencement of the proceedings did nothing to undermine the reasonableness of his action in taking that course. When the summons was first returned, the solicitors acting for Mr and Mrs Haramalabides acceded, without demur, to a direction that they should file their evidence in response to that filed on behalf of the applicant. The denial of any legal wrongdoing implicit in accepting that direction was made explicit in both correspondence and telephone discussions then exchanged between the solicitors for the parties.
12. However, that stance was, at least in a practical sense, undermined by the actions of both Mr Boyce and the Council. The former gave notice of his intention to issue a stop work order on the basis that the validity of the CDC was doubted. About the same time the solicitors for the Council by correspondence directed to the solicitors acting for Mr and Mrs Haralambides questioned the validity of the CDC followed by an order from the Council itself under s 121B of the EPA Act directing that work stop because development contemplated at the property could only be carried out under a development consent granted pursuant to the EPA Act.
13. The combination of those events in early to mid-May 2014 not only resulted in building work coming to a halt but were events that immediately preceded the conciliation conference convened by the Council on 22 May 2014. The course of negotiation then commenced continued until early August 2014 when, upon retaining their present solicitors, Mr and Mrs Haralambides agreed to make the development application and building certificate application I have earlier identified. That course of action on their part seemed inevitable given the action taken by Mr Boyce, the Council and Mr Dowling, all founded upon the claimed invalidity of the CDC.
14. In my assessment of the evidence, it is tolerably clear that the commencement of the present proceedings was significant in precipitating the events leading to the course of action taken by Mr and Mrs Haralambides. Once that course was signalled, Mr Dowling acted reasonably in his conduct of the proceedings by accommodating both adjournments to allow the process of negotiation to continue but also to accept lengthy adjournments to enable Mr and Mrs Haralambides to pursue to finality the applications that they agreed to make under the EPA Act. Thus, it may be seen that he acted reasonably not only leading up to the commencement of the proceedings but after those proceedings had commenced until such time as a practical resolution had been achieved.
15. Contrary to the submission made on behalf of Mr and Mrs Haralambides, I am not persuaded that the quantification of legal costs, the payment of which was said to be a condition of accepting an offer of settlement made on 22 May, should weigh against the making of a costs order in favour of Mr Dowling. There are two reasons for so concluding. First, the evidence led by Mr and Mrs Haralambides is internally inconsistent as to when this conversation took place. Mr Haralambides states in an affidavit that was read that the conversation took place on 22 May. However, in an affidavit sworn on 11 September 2015 by Simon Konstantinidis, the former solicitor retained by Mr Haralambides, he states that the conversation took place on 31 July. The inconsistency in dates is not explained in the evidence. Correspondence annexed to the affidavit of Mr Konstantinidis tends to support the July date. That is important because agreement was reached shortly thereafter with the present solicitor acting for Mr and Mrs Haralambides that they would proceed with the applications to the Council earlier discussed. Second, the claim for costs clearly did not impede the course of action agreed to be taken in an endeavour to resolve the proceedings.
16. Each party contended that, if successful, they should have an order for costs for the present notice of motion in their favour. As Mr Dowling has been successful, he should have his costs of the motion.
17. The orders that I make are as follows: 1. Pursuant to r 12.1(1)(b) of the Uniform Civil Procedure Rules 2005 I give leave to the applicant to file a notice of discontinuance in respect of the whole of these proceedings. 2. Direct that the applicant file a notice of discontinuance in the Registry within 7 days. 3. Order that the respondents pay the applicant's costs of these proceedings. 4. Order that the respondents pay the applicant's costs of the notice of motion dated 20 July 2015. 5. Exhibits may be returned.

Amendments 06 November 2015 - Cases added to front cover sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2015