Glew v Frank Jasper Pt

[2018] WADC 113

District Court of WA|2018-12-07|Before: Mr P, Carolyn Martin J

View original source

At a glance

Source facts

Court

District Court of WA

Decision date

2018-12-07

Before

Mr P, Carolyn Martin J

Source

Original judgment source is linked above.

Judgment (182 paragraphs)

[1]

For the reasons set out below, I have found that the defendants are liable to the plaintiff for half of its reasonable costs of providing land for, and the construction of, the relevant portion of Sessilis Crescent and interest on that sum.
I have also found that the defendants are liable to pay to the plaintiff an amount representing the GST which the plaintiff will be required to pay on the judgment sum. The plaintiff also sought interest on the GST amount. As it was not clear to me why interest should be awarded on the GST amount, and no submissions were made on the point, I will give the parties liberty to make submissions on this point within 14 days of judgment should they wish to do so.

[2]

In determining the issues in this matter, I have had regard to the fact that the defendants appeared in person with the first defendant effectively conducting the trial on behalf of both of the defendants. The defendants were, however, legally represented until after this matter went to mediation.
There are well-established general principles providing guidance on the level of flexibility and assistance which is to be provided to a litigant in person. A litigant in person is entitled to some leniency in relation to compliance with the court rules: Glew v Frank Jasper Pty Ltd [10] (judgment of the court). The court should approach the documents in which a litigant in person articulates their claim with some flexibility: , 536 - 537 (Kirby P), 543 (Hope & Samuels JJA agreeing). The court needs to be astute to ensure that, in a poorly expressed or unstructured document in which a litigant in person sets out their claim, there is no viable cause of action which, with appropriate amendment or permissible assistance from the court, could be put into proper form: [21] (Beech J); [15] (E M Heenan J, with whom Murray & Le Miere JJ agreed [3] and [70]). A 'frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy': [5]; ; , 510; ; , 150 (Brennan, Deane, Toohey, Gaudron & McHugh JJ); [21]; [10]; [14].

[27]

The factual background to this matter is not in dispute. The facts which are agreed and which I have found on the balance of probabilities are as follows.
The plaintiff, Starshore Pty Ltd, ACN 108 107 606, is a company of which Mr Darren Blowes is the director. Mr Blowes is a registered real estate sales representative. Over the past 20 years Mr Blowes has been involved in the business of property development, which he conducts through various companies (exhibit 2, [1] - [3]).
The plaintiff was registered on 24 February 2004 for the purposes of conducting the development of an area of land in Wattle Grove, which is within the Shire of Kalamunda (Shire) and comes within an area of the Shire designated as 'Cell 9' in the Shire's Local Planning Scheme No 3 (exhibit 1 - 16).
The land which the plaintiff proposed to develop (Proposed Development Area) consisted of the following two areas:
1. Lot 22, being the whole of the land in Certificate of Title Volume 18900 Folio 442 and Lot 23 (Lot 22); and
2. Lot 23, being the whole of the land in Certificate of Title Volume 1890 Folio 443 (Lot 23).
On 24 February 2004, Lot 22 was owned by a Mr and Mrs Adams and Lot 23 was owned by Mr Blowes.
In May 2004, Mr and Mrs Adams entered into a contract with the plaintiff by which they agreed to sell Lot 22 to the plaintiff. The contract was conditional upon the plaintiff obtaining approval for the subdivision of the Proposed Development Area. It was also a condition of the contract that a specified area of that land, on which the Adams' home was situated (Homestead Lot), would be transferred to them following the subdivision of the Proposed Development Area and the creation of the Homestead Lot as a separate Lot (exhibit 1 - 82; exhibit 2 [9]).
On 10 May 2004, an application for conditional development approval of the Proposed Development Area was made by Gray & Lewis (a planning company) on behalf of Mr and Mrs Adams and Mr Blowes (exhibit 1 - 29; exhibit 2 [20]).
The proposed subdivision of the Proposed Development Area showed the land which was then Lots 22 and 23 being subdivided as follows:
1. 21 lots coming from Lot 22;
2. five lots from Lot 23;
3. the upgrading of William Street; and
4. the construction of Extensa Road and Sessilis Crescent.
Conditional approval for the subdivision of the Proposed Development Area was obtained from the Western Australia Planning Commission (WAPC) on 3 December 2004 (exhibit 1 - 35).
The WAPC reference number given to the proposed subdivision of the Proposed Development Area was 125238.
Lot 22 was transferred to the plaintiff on 11 March 2005 (exhibit 1 - 83).
Lot 23 was subsequently transferred to the plaintiff by Mr Blowes. Mr Blowes gave evidence that he does not recall the date on which this occurred (ts 53) and no other evidence was led as to the date.
The subdivision of the Proposed Development Area was effectively carried out in stages.
First, Lots 900 and 9000 were created. Lot 900 was the Homestead Lot. Lot 9000 was the balance of the land which had formerly been part of Lot 22. The WAPC endorsed the relevant Deposited Plan, Deposited Plan 45126 with its approval of this subdivision on 31 May 2005 (exhibit 1 - 53).
Lot 900 (the Homestead Lot) was transferred to Mr and Mrs Adams by the plaintiff on 2 August 2005 in satisfaction of their agreement (exhibit 1 - 87).
Second, the plaintiff further subdivided Lot 9000. This involved the creation of Extensa Road and Lot 9001. The WAPC approval was endorsed on the relevant Deposited Plan, being Deposited Plan 53290 on 26 February 2007 (exhibit 1 - 54).
Third, Lot 9001 was then subdivided by the creation of Lots 601, 602, 603, 615, 616 and 9101. The WAPC approval was endorsed on the relevant Deposited Plan, being Deposited Plan 58752 on 11 April 2008 (exhibit 1 - 55).
Fourth, Lot 9101 was subdivided by the creation of the relevant portion of Sessilis Crescent, and Lots 604 - 606 (inclusive), 609 - 614 (inclusive) and 617 - 622 (inclusive). The WAPC approval was endorsed on Deposited Plan 58760 on 22 May 2008 (exhibit 1 - 56).
The defendants purchased Lot 900 from Mr and Mrs Adams on 5 September 2013 (exhibit 1 - 59) although they had entered into a contract to purchase the land from Mr and Mrs Adams in about July 2013.
The defendants subdivided, or caused to be subdivided on their behalf, the land comprised in Lot 900. That involved the creation of Lots 901, 902, 903, 904, 905 and 906. The WAPC approval of that subdivision was endorsed on Deposited Plan 405986 on 4 September 2015 (exhibit 1 - 60).
Lots 903, 904, 905 and 906 abut Sessilis Crescent. There is access to Sessilis Crescent from each of those Lots (exhibit 1 - 60).
The length of that portion of Sessilis Crescent which abuts Lots 903, 904, 905 and 906 is 60.71 m (exhibit 1 - 60; exhibit 3 [37]).
The relevant portion of Sessilis Crescent is 15.002 m wide (exhibit 1 - 56).
The area of Sessilis Crescent which abuts Lots 903, 904, 905 and 906 is approximately 910 sqm (exhibit 3 [28]).
The defendants paid to the Shire the sum of $136,575.00 being full payment of the Cell Infrastructure Contribution that was a condition of the conditional approval given by the WAPC on 3 December 2004.
On 4 July 2008 the Shire paid to the plaintiff the sum of $109,437.65 (including GST) for the installation by the plaintiff of infrastructure (stormwater pipes) that was needed for the benefit of the broader Cell 9 Local Planning Scheme No 3 (exhibit 1 - 25.9 and exhibit 4 [59] - [82]).
The CPI last published prior to March 2008 was 90.5 (exhibit 1 - 78).
The CPI published prior to 4 September 2015 was 107.7 (exhibit 1 - 78).

[40]

The defendants contend that s 159 of the PD Act does not apply because Lot 900, having been created within the larger Proposed Development Area, did not have a common boundary with Sessilis Crescent.
The defendants also resist liability on the basis that Sessilis Crescent was not an existing road at the time subdivision of the Proposed Development Area was conditionally approved.
These contentions misapprehend the test which is to be applied under s 159 and are underpinned by their error regarding the time at which the relevant subdivisions occurred at law. The assessment which is to be undertaken pursuant to s 159 is an assessment of whether, at the time of the later subdivision, the lots created have a common boundary with a road which was in existence at the time of the later subdivision.
As Staude DCJ found in Level Holdings Pty Ltd v Laurendi [No 2] [43] for s 159 to apply three preconditions must exist. They are:
1. there is access from the adjoining subdivided land to the existing road;
2. the existing road has a common boundary with the original subdivider's land; and
3. the existing road has a common boundary with the later subdivision or is joined by a road of that subdivision.
Where those preconditions are met, s 159 of the PD Act then requires consideration of whether the original subdivider contributed to or bore the costs of providing or upgrading the relevant road. Where that is the case, then s 159 allows the original subdivider to recover half of the reasonable costs of having done so.
In Lakewood Estates Pty Ltd v De Boer, Burt CJ found that the point in time at which Lots must have had a common boundary with a road is the time of the later subdivision. While that case concerned s 28A of the Town Planning Act 1928 (WA), the predecessor to s 159 of the PD Act, the decision still provides guidance as to the way in which the successor s 159 is to be interpreted because it has not changed in relation to the point in time at which the assessment is to be made.
In this case:
1. the defendants are a later subdivider who on 4 September 2015 subdivided Lot 900 thereby creating Lots including Lots 903 - 906.
2. Lots 903 - 906 had a boundary with and access to Sessilis Crescent;
3. at 4 September 2015 the plaintiff's subdivision of Lot 9101 had already occurred (having taken place on 22 May 2008); and
4. some of the Lots created from Lot 9101 had a common boundary with Sessilis Crescent.
Those facts having been established, it follows that, unless as a matter of fact the defendants either establish that they contributed to the costs of providing Sessilis Crescent or succeed in their construction arguments, the plaintiff is entitled to recover from the defendants a sum being one half of the reasonable costs it contributed to or bore solely in constructing the portion of Sessilis Crescent which abuts Lots 903 - 906.

[87]

The plaintiff's evidence was that it engaged various experts to assist it in carrying out the subdivision of the Proposed Development Area which had been conditionally approved by the WAPC. It is not in dispute that VDM Engineering was an engineering company which was engaged to oversee the project and to design the civil works which were to be undertaken in the course of the subdivision. It is also not in dispute that Miluc Civil Pty Ltd (Miluc) is a civil contractor who was engaged by the plaintiff, on the advice of VDM, to undertake the civil works which had been designed by VDM.
The undisputed evidence of the plaintiff is that the civil construction works progressed in stages and that at the completion of each stage Miluc issued to the plaintiff an invoice for what is known as a 'progress payment' for the stage. Each invoice was then assessed by VDM and provided to the plaintiff for payment only after VDM had assessed that the amount invoiced was reasonable and the works for which payment was being claimed had actually been completed (exhibit 4 [45] - [56]).
The plaintiff's evidence was that it paid 10 progress payments to Miluc which represented the total payments for all of the works carried out by or for it in connection with its development of the Proposed Development Area, including the construction of Sessilis Crescent (exhibit 2 [48] - [54]). The total paid was $865,801.36 (exhibit 1 - 70.9; exhibit 1-- 69.13).
Mr Golder is a civil engineer. He was engaged by the plaintiff to calculate the costs of providing the works for the relevant portion of Sessilis Crescent. His expertise in this regard was not challenged by the defendants.
His unchallenged evidence was that the costs charged by Miluc for the works which it undertook for the plaintiff in the development of the Proposed Development Area were, in his expert opinion, reasonable (exhibit 3 [73]). In the absence of any evidence to the contrary I accept his evidence on this point.
Mr Golder's evidence was that he calculated the costs of designing and carrying out the works set out in s 159(3)(b)(i) - (iii) in so far as they related to the relevant portion of Sessilis Crescent by reference to the rates and quantities which were set out in Miluc's Progress Payment 9 because that was the payment that covered the works involved in constructing Sessilis Crescent (ts 90 - 91). He gave evidence that he utilised three different methods in calculating the cost (ts 95; exhibit 3 [24]). Mr Golder gave reasons for adopting each of the three methods. Mr Golder's evidence was that, based on his expertise and experience, the methods he employed to calculate and apportion the costs of the construction of portions of roads within a development area were methodologies he and others in his field would engage when a valuation of this type is being undertaken (ts 95).
Neither the methods used nor the calculations themselves were challenged by the defendants in these proceedings.
I therefore accept Mr Golder's evidence that the reasonable costs of providing the works for the relevant portion of Sessilis Crescent was $33,143.10.
It follows that the cost of providing the relevant portion of Sessilis Crescent for the purposes of s 159(3)(a) and s 159(3)(b) of the PD Act is the sum of the cost of providing the land ($237,000) plus the costs of the relevant works ($33,143.10), being a sum of $270,143.10.

[131]

While delay in complying with court imposed timeframes is unfortunate, it is not uncommon in litigation. In this case, the delay in filing and serving the relevant documents was not lengthy. Further, there is nothing in the affidavit material before me that would support the claim that the delay was occasioned as a deliberate strategy to intimidate the defendants albeit that the defendants, as, by that time, self-represented litigants, may have found the delay distressing. It is clear from the material in the affidavits that the plaintiff communicated with the defendants when it became apparent that there would be a delay in complying with the relevant court timetable and, as was appropriate, indicated to the defendants that it would not take objection to them having a corresponding extension of the time in which to file documents in response. In those circumstances, I do not regard the delays of which the defendants complain as capable of being characterised as demonstrating conduct of the kind that would disentitle the plaintiff to an order for costs following the event of its success.
The lawful deferral of the payment of the Cell Contributions by the plaintiff does not constitute misconduct by the plaintiff, although I do not understand the defendants to have characterised it in that way. The fact that the defendants had to make those deferred payments, and that they did not know of their liability to do so prior to purchasing Lot 900, does not bear upon the question of whether the plaintiff should be able to recover its legal costs.
Further, the fact that the paying party may be unable to meet a costs order does not disentitle the claiming party from being awarded costs.
The defendants acknowledge that their offer to settle of 1 March 2017 proposed a settlement sum which was considerably less than the plaintiff had demanded (see the defendants' outline of submissions at [49]). They say this was so because in making the offer they had taken into account that they had made Cell Contribution payments which the plaintiff had deferred and had also had to pay for the decommissioning and removal of a septic disposal system as part of its subdivision. The defendants say the plaintiff should have made those payments when it owned the land. The defendants say that their payment of these costs meant that the plaintiff had a financial benefit in its subdivision such that the defendants should not have had to pay the costs of the litigation.
The fact that the defendants had to bear those expenses and that they did not know of their liability to do so prior to purchasing Lot 900, again, does not bear upon the question of whether the plaintiff should be able to recover its legal costs.
I am satisfied that, in this case, there is no reason to depart from the usual position that the successful litigant should be awarded costs.

[159]

The Calderbank offer was made by the plaintiff in a letter dated 22 December 2017 which was annexed to the affidavit of Ms Burnside. It was therefore made some five months prior to the trial. The offer was open until 19 January 2018. That offer was rejected by the defendants prior to it lapsing. The Calderbank offer was 13 pages long and went into great detail about the law which applied to the plaintiff's claim and why the defences advanced by the defendants at that time had no prospects of success. It clearly stated that if the settlement offer was rejected and the matter proceeded to trial, the plaintiff would seek costs on an indemnity basis in the event that it were ultimately successful and alternatively on the basis of party and party costs until 22 December 2017 and thereafter on an indemnity basis.
The offer made was that the claim be settled for the sum of $180,000 with no order as to costs. This was clearly less than the sum of $201,232.17 which the plaintiff said was then owing and the approximately $120,000 in costs which the plaintiff informed the defendants would be its estimate of the costs that would have been incurred following a two day trial.
The defendants put the plaintiff to the expense of refuting grounds which were either hopeless or devoid of any prospects of success. The circumstances are such that, if properly advised, and acting reasonably, the defendants would not have taken this matter to trial.
Further, the defendants effectively put the plaintiff to proof of the costs which it claimed in connection with the provision of land for, and the construction of, the relevant portion of Sessilis Crescent notwithstanding that they did not seriously cross-examine any of the witnesses about those costs and despite the fact that they led no evidence of their own to dispute those costs. While these might be said to be matters uniquely in the knowledge of the plaintiff, it was in my view, unreasonable to require the plaintiff to prove these matters at trial in circumstances where no alternate was to be put forward. The better approach in that circumstance would have been to accept the amount claimed was correct and simply to resist liability on the statutory construction points thereby avoiding the costs of the preparation for and the attendance of witnesses at the trial.
It is perhaps easy, with the benefit of hindsight, to construe the defence as always having been hopeless no matter how honestly the defendants hold the belief to the contrary. However, it is notable that the plaintiff did not bring a summary judgment application in the proceedings as would have been the appropriate course of action where it took the view that the defence was hopeless from the outset.
The defendants informed me at the hearing of the costs application that their lawyers ceased to act for them following the mediation not because they had formed the view that the case had no merit, but because the defendants could no longer afford to be legally represented. The court was told that the defendants' solicitors had informed them that they had a case. I accept that the defendants did not defend the action for any improper purpose and at all time held, and continue to hold, the honest belief that their construction of the law is the correct one notwithstanding that the plaintiff had, by the very comprehensive terms of its Calderbank offer, endeavoured to persuade them from that view.
Given no summary judgment application was made and given that I accept that there was no demonstrated improper or collateral purpose in the maintenance of the defence case, I do not consider that the high threshold for the exercise of the discretion to make an order for indemnity costs to be paid from the outset has been met.
I do, however, consider that the rejection of the Calderbank offer was unreasonable. The offer was clearly a legitimate attempt to resolve the proceedings on terms which were reasonable in light of the defendants' case. The reasons why each ground of appeal then raised by the defendants was untenable were carefully articulated as was the fact that rejection of the offer would lead to an application for indemnity costs being made in the event that the plaintiff were to be successful after trial. The defendants were given an adequate period of time within which to consider and accept the offer, the settlement sum was to have been paid in full within 14 days of the parties executing the settlement deed, and the offer itself was for a sum which was significantly less than the amount for which the defendants were ultimately found to be liable to the plaintiff, particularly when regard is had to the fact that the offer was that each party would bear its own costs.
In those circumstances, I consider that it is appropriate for the defendants to pay the plaintiff's costs on an indemnity basis from the time of making of the Calderbank offer.

[176]

In considering that application I have had regard to Ms Burnside's affidavit sworn 28 September 2018 and particularly to the draft bill of costs annexed as HJB 1 to that affidavit (the Draft Bill). I have also had regard to what I know about the case as a result of having been the trial judge. I have had regard to the court file and to the hourly rate and to the maximum allowances provided in respect of the relevant items provided in the Determination. I have also had regard to the public purpose for which the Determination is made and the process by which maximum hourly rates and maximum allowances in the Determination are set.
It appears from my consideration of the Draft Bill and the case itself that it is fairly arguable that the bill of costs to be presented to the taxing officer may properly tax at an amount greater than the limit which would be imposed by the Determination for the relevant items. I do not, however, accept that the inadequacy arises from any unusual difficulty of the case. While there were many grounds upon which liability was resisted by the defendants, I do not regard the case to have been unusually difficult having regard to the types of cases which would usually come before this court.
I do accept though that the costs allowable in respect of the provision of discovery and inspection and the preparation for the trial would be inadequate because of the complexity of the proceedings, which complexity arose from the manner in which the defendants conducted the case.
I find, therefore, that it is appropriate that those items should be taxed without regard to the maximum amount allowable in the Determination.
However, I do not consider that it is appropriate to remove the maximum hourly rate provided in the Determination for those items. Those rates are set after recommendations were made by the Legal Costs Committee following its detailed consideration of the relevant issues and involved a processes of consultation and public submission: see Legal Profession (Supreme Court Appeals) (Contentious Business) Report 2016. I can see no reason to depart from the maximum hourly rates set in the Determination in this case.

Glew v Frank Jasper Pt

At a glance

Court

Decision date

Before

Source

Judgment (182 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (22)

STARSHORE PTY LTD -v- KELLAS [2018] WADC 113 (7 December 2018)