HOLROYD CITY COUNCIL v. JOHN SAHYOUN No. 40177 of 1995 [1995] NSWLEC 9 (2 February 1995) [1995] NSWLEC 1

In the light of these outcomes, the proceedings have been effectively concluded, save for the outstanding question concerning certain costs incurred in the proceedings. It is obvious that the Council has been entirely successful in the proceedings and would normally be expected to obtain the usual order for its costs, following the result of class 4 proceedings. However, because certain costs orders have been previously made at various stages in the proceedings, namely on 4 October 1995 when I ordered the Respondents to pay the Applicants' costs of the proceedings (which in context, necessarily would be confined to the interlocutory proceedings) and on 5 December 1995 when the Registrar ordered the Respondents to pay the Applicants' costs of attendances on 28 November 1995 and 5 December 1995 which took place before the Registrar, the outstanding issues of costs have focussed particular attention upon costs incurred in connection with other particular occasions when the parties have been before the Court, namely on 11 and 16 October 1995 when the matter was brought before me by the Council alleging that the Respondents had not complied with the mandatory order I had made on 4 October 1995 and on 31 October 1995 and 7 November 1995 when the matter was before the Registrar.

In respect of the costs incurred on these particular appearances before the Court, the Council claims its costs in respect of all occasions whereas the Respondents claim their costs in respect of the appearances on 11 and 16 October 1995 and submit that there should be no order as to costs in respect of the appearance on 31 October 1995 but do not resist any order for costs in respect of the appearance on 7 November 1995.

Upon reflection, I think the more appropriate manner to proceed to determine the disputed question of costs is to revisit the whole question of costs in the proceedings by making an overall costs order which will also operate in substitution of the two earlier costs orders that I have mentioned were made in the proceedings.

I think that the manner I have proposed for the outstanding question of costs to be determined reflects the more conventional approach to costs determinations and avoids any possible distortions of the true issue created by a piece-meal approach to costs.

So understood, and having regard to the litigation history, the question of costs falls within two obvious sub-categories, i.e.

(i) those relating to the Council's claims to interlocutory relief; and (ii) those relating to the Council's claims to permanent relief.

The disputed costs of the particular appearances I have mentioned involve both sub-categories - the appearances before me on 11 and 16 October 1995 were clearly in respect of the Council's claims to interlocutory relief and the appearances before the Registrar were clearly in respect of the Council's claims to permanent relief.

Accordingly, I shall proceed to separately consider the costs of the interlocutory proceedings and of the permanent proceedings. However, I think I should say at the outset that in view of the Council's entire success in the proceedings (in the manner I have earlier described) and the fact that the competing cases have been conducted on the basis of whether or not costs were unnecessarily incurred in respect of the particular appearances in question (and not on the basis of the success, partial or otherwise, of either party, on certain issues in dispute) it is difficult, if not impossible, to find any reasonable basis for ordering costs in favour of the Respondents. Rather, if the conclusion is reached that costs have been unnecessarily incurred, the appropriate response would be to deny the Council, as the successful litigant in the proceedings, its costs in that respect.

The mandatory order I made on 4 October 1995 was in the following terms:

"2. The Respondents shall forthwith take remedial action in respect of the existing excavation on the development site, known as No. 36-40 Newman Street, Merrylands so as to fully protect the property known as No. 34 Newman Street, Merrylands together with any improvements erected thereon from suffering any damage from the existence of the said excavation."

Additionally, by order No. 3 I granted liberty to the Applicant to apply on 24 hours notice "for further or supplementary relief".

It was pursuant to that liberty that the Council brought the matter before me on 11 October 1995. On that occasion, the Council asserted that the Respondents had failed to comply with the Court's mandatory order. This assertion was denied but the matter did not proceed to a hearing, principally because the Respondents were not ready to meet the Council's claim, which itself had not been formulated with any precision. Nor was it in the form of a Notice of Motion or otherwise. Accordingly, I thereupon made the following orders:-

"1. The proceedings be stood over to 9.30 a.m. on 16 October 1995 before His Honour Bignold J. for mention on the terms that:

(a) the remedial action as required by the Court's Order of 4 October 1995 be completed by 6.00 p.m. on 14 October 1995.

(b) both parties to report to the Court as to the physical state of the work as required.

(c) the Applicant will notify the Court as to whether it will seek any action against the Respondents in respect of the Court's orders made on 4 October 1995.

When the matter came back before me on 16 October 1995, the Court was informed by the parties that the Court's mandatory order had been complied with and the Council informed the Court that the only action it now sought in relation to the orders made on 4 October 1995 was to seek an order for costs incurred since the orders were made.

It is to be noted that the Council has not sought to establish any contempt by the Respondents in respect of the Court's orders made on 4 October 1995, nor has it been suggested that the manner in which the Respondents complied with the mandatory order involved any departure from the method it had foreshadowed at the interlocutory hearing on 4 October 1995, namely to erect a retaining wall with appropriate supports and back filling.

In the circumstances, I do not think the Council's argument that the mandatory order was not complied with by the Respondents (because the remedial works were not executed "forthwith" as required) or was only complied with because of the pressure brought to bear upon the Respondents by the Council's initiative in having the matter restored before me can be sustained, or has been sustained.

I would accordingly conclude that the Council has unnecessarily incurred the costs of restoring the matter before me on 11 October 1995, even though that action probably had a salutary influence on the Respondents in executing the required remedial works. In the light of this conclusion, I do not think the Council, as the successful litigant, should obtain its costs of bringing the matter back to Court on 11 and 16 October 1995. However, for the reasons given, I do not think that the Respondents are entitled to their costs in respect of these appearances. They were not successful, in any relevant sense, in respect of what occurred on these two appearances and it is not in dispute that when the matter was restored the Respondents had not, at that stage, complied with the mandatory order.

This brings me to consider the two further appearances in relation to the Council's claims to permanent relief. There is no dispute that the Council should obtain its costs for the appearance on 7 November 1995 when the Respondents gave the undertakings which effectively concluded the proceedings. However, the Respondents say they should not have to pay costs of the Council's appearance on 31 October 1995 because neither they nor their Solicitors had received any notice from the Court Registry of the callover date for the proceedings. It appears that there may have been some inadvertent failure to inform the Respondents of the callover. In these circumstances, I do not think it would be fair to impose costs on the Respondents.

Accordingly, I conclude that the Council, as the successful litigant, should not obtain its costs in respect of the callover held on 31 October 1995. Obviously there is no basis for ordering costs in favour of the Respondents for what resulted in the proceedings being stood over until 7 November 1995 when the Respondents gave their undertakings.

It follows from the foregoing that the appropriate costs order in the proceedings is that the Respondents should pay the Council's costs of the proceedings (except the costs incurred in connection with the appearances before the Court on 11, 16 and 31 October 1995 in respect of where there should be no order) in the sum agreed, or failing agreement, as assessed. The making of this costs order would, of course, be in substitution for all previous costs orders made in the proceedings.

This leaves outstanding the question of costs of yesterday's proceedings, which the parties agreed would fall to be determined according to the results reached on the disputed costs issues. Since neither party has been successful in respect of the disputed costs issues (where the Respondents, in addition to successfully resisting the Council's costs application have unsuccessfully counter-claimed for their costs) there should be no costs ordered in relation to yesterday's hearing.

1. On the Respondents' undertakings given to the Court on 7 November 1995 the application is, by consent, dismissed.

2. Vacate the costs orders made by the Court on 4 October 1995 and 5 December 1995 respectively.

3. The Respondents to pay the Applicant's costs of the proceedings except for costs incurred in connection with the appearances before the Court on 11, 16 and 31 October 1995 (as to which there be no order as to costs) in the sum agreed, or failing agreement, as assessed.

4. No order as to costs in respect of the hearing of the proceedings on 1 February 1996.

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