Lane Cove Council v Ross

Lane Cove Council v Ross 16/160309

1. The Council filed a notice of motion on 3 May 2016 seeking orders that: 1. The Applicant is granted leave to discontinue these proceedings on the terms set out hereunder. 2. The First Respondent pay the Applicant's costs of the proceedings. 3. The First Respondent pay the Applicant's costs of this motion. 4. The orders for costs made by Pepper J in Lane Cove Council v Ross (No. 5), (No. 6), (No. 11) and (No. 12) dated 20 February 2013 and 29 May 2013 respectively and by Biscoe J in Lane Cove Council v Ross (No. 15) dated 29 November 2013 are payable from the date hereof.
2. The substantive issue is whether the Council's costs should be paid by Mr Ross. Numerous interlocutory judgments in Class 4 Ross (nos 1-3, 5-13, 15) and final declarations and/or orders (nos 4, 14) have been made in these proceedings. As identified in prayer 4 costs orders have been made in Class 4 Ross (nos 5, 6, 11, 12, and 15) in the Council's favour and the Council seeks to clarify when those costs are payable. Apart from making the order in prayer 4 no further decision of the Court is required in relation to those existing costs orders. The Council is claiming its costs of the balance of the proceedings, including in relation to judgments where no costs orders were made at the time of delivery. The costs claim includes a three day hearing on 27-29 May 2013 the subject of Lane Cove Council v Ross (No 14) [2013] NSWLEC 87 concerning whether demolition and restoration ought be granted to the Council. Other judgments where costs are outstanding are Class 4 Ross (nos 1, 2, 3, 4, 7-10, 13). Class 4 Ross (nos 7-10, 13) concerned interlocutory matters dealt with during the 27-29 May 2013 hearing before Pepper J.
3. Mr Ross represented himself in the notice of motion hearing.
4. Ms Chami was joined in these proceedings on 15 April 2014 following the Court of Appeal decision Ross v Lane Cove Council [2014] NSWCA 50 finding that she should be joined as a party being the registered proprietor of the Land as from May 2013. No costs order against her is sought in these proceedings.
5. Separate civil enforcement proceedings (Class 4 Chami) have also been commenced against Ms Chami by the Council and broadly the same evidence and submissions are relevant to the similar notice of motion filed by the Council in relation to those proceedings. The Court will consider those proceedings separately to the limited extent necessary below from par 119. The factual matrix is generally common to both civil enforcement matters and largely the same evidence is relevant in relation to both notices of motion. Only one chronology and summary of evidence will therefore appear in this judgment.
6. In Class 1 proceedings being Ms Chami's second appeal against the refusal of a building certificate by the Council decisions were handed down on 23 January 2015, 15 June 2015, 3 September 2015 and final judgment was delivered on 11 November 2015 granting a conditional building certificate to Ms Chami. As a result of the grant of a building certificate the Council wishes to discontinue both enforcement proceedings.
7. The Class 4 Ross notice of motion was part heard before Pepper J on 7-9 September 2016. I heard the remainder of these proceedings and the Class 4 Chami notice of motion on 13 February 2017. I was greatly aided by the transcript in the earlier hearing, the parties' submissions and the rulings on evidence by Pepper J in finalising this judgment on costs.

Relevant Court rules

1. Section 98 of the CP Act provides: Part 7 Division 2 Section 98 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. ... (4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to: (a) costs up to, or from, a specified stage of the proceedings, or (b) a specified proportion of the assessed costs, or (c) a specified gross sum instead of assessed costs, or (d) such proportion of the assessed costs as does not exceed a specified amount. ...
2. The Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provide: Part 12 Discontinuance, withdrawal, dismissal and setting aside of originating process Division 1 Discontinuance of claim 12.1 Discontinuance of proceedings (1) The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant: (a) with the consent of each other active party in the proceedings, or (b) with the leave of the court. ... Part 42 Costs Division 1 Entitlement to costs 42.1 General rule that costs follow the event Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. … Division 5 Proceedings discontinued or dismissed 42.19 Proceedings discontinued (1) This rule applies to proceedings that are discontinued by the plaintiff, as referred to in rule 12.1. (2) Unless the court orders otherwise or the notice referred to in rule 12.1 (2) otherwise provides, the plaintiff must pay such of the defendant's costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued. …

Chronology of relevant events

1. The chronology of relevant events is based on the Council's submissions and the parties' evidence, verified by Court files and matters of public record such as judgments or are matters the Court understands to be otherwise non-contentious. Date Event 25 July 2007 Mr Ross contracts to purchase the property at 8 Bayview St, Northwood from Mr Hopes. The transfer of ownership was not registered at that time. 2 April 2008 Development consent granted to Mr Ross for alterations and additions to the existing dwelling house on the subject land. 10 May 2012 Council officer responds to complaint about unlawful building work. 28 June 2012 Class 4 Ross commenced by summons seeking declarations that works had been carried out otherwise than in accordance with development consent and to restrain further works. 6 July 2012 Ex parte injunction granted in Class 4 Ross restraining building work until further order. No order as to costs: Lane Cove Council v Ross [2012] NSWLEC 153. 12 July 2012 Injunction continued until 24 July 2012. Mr Ross appeared and read affidavit in which he admitted breaches under Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Costs reserved: Lane Cove Council v Ross (No 2) [2012] NSWLEC 160. 24 July 2012 Injunction continued ex parte until 1 August 2012. Hearing set down for same date. Costs reserved: Lane Cove Council v Ross (No 3) [2012] NSWLEC 171. 10 August 2012 Mr Ross lodges s 96 application with the Council. 13 August 2012 Injunction continued. Mr Ross declared to be in breach of development consent. Final hearing to deal with demolition and restoration works adjourned to give the Council opportunity to assess the s 96 application. Costs reserved: Lane Cove Council v Ross (No 4) [2012] NSWLEC 191. 2 October 2012 Section 96 application refused by the Council. 1 November 2012 - 7 February 2013 Class 4 Ross proceedings direction hearings on the following occasions: 1 Nov 2012, 8 Nov 2012, 19 Dec 2012, 1 Feb 2013 and 7 Feb 2013. 18-19 December 2012 Class 1 Ross s 96 appeal heard. Indicative approval granted pending preparation of new plans and registration of transfer to crystallise ownership issue or provision of owners consent: Ross v Lane Cove Council [2012] NSWLEC 1364. 10 January 2013 Land transferred from Mr Hopes to Mr Ross, registered the next day. 16 January 2013 Ms Edilbi (aka Ms Chami) lodges a building certificate application with the Council in Mr Ross's name in relation to awnings, a rear concrete balcony slab and spa. 29 January 2013 Class 1 Ross s 96 appeal relisted. Appeal discontinued by Mr Ross. Hearing of two notices of motion in Class 4 Ross: 18 February 2013 1) Ross motion to set aside orders in Ross (No 4) not granted; 2) Council permitted by consent to inspect premises. Mr Ross ordered to pay costs for first motion: Lane Cove Council v Ross (No 5) [2013] NSWLEC 17. 12 March 2013 Council letter refusing building certificate application of Ms Edilbi/Mr Ross lodged 16 January 2013 based on insufficient information posted. 20 March 2013 Directions made by Pepper J in Class 4 Ross setting the matter down for hearing on 27-29 May 2013. Mr Ross did not appear. Ms Benn solicitor appeared for Ms Edilbi who she said was the new owner/builder of the property. Adjournment application refused on the basis that Ms Benn did not appear for a party in the proceedings. 1 May 2013 Class 1 appeal against refusal of building certificate commenced by Ms Edilbi. 3 May 2013 Land transferred from Mr Ross to Ms Chami. 22 May 2013 Mr Ross files notice of motion at 5:30pm to adjourn further Class 4 Ross hearing. Motion dismissed with costs: Lane Cove Council v Ross (No 6) [2013] NSWLEC 74. 27-29 May 2013 Part-heard hearing resumes. Numerous interlocutory applications by Mr Ross. Application to adjourn part-heard hearing refused: Lane Cove Council v Ross (No 7) [2013] NSWLEC 76. 28 May 2013 Application for leave to file affidavit in court refused: Lane Cove Council v Ross (No 8) [2013] NSWLEC 77. Application to re-open evidence refused: Lane Cove Council v Ross (No 9) [2013] NSWLEC 78. Application to re-open evidence refused: Lane Cove Council v Ross (No 10) [2013] NSWLEC 79. Application for recusal refused with costs: Lane Cove Council v Ross (No 11) [2013] NSWLEC 81. 29 May 2013 Application for adjournment refused with costs: Lane Cove Council v Ross (No 12) [2013] NSWLEC 82. Further application for adjournment refused: Lane Cove Council v Ross (No 13) [2013] NSWLEC 80. Substantive matter commences at 2pm. Mr Ross not in Court as the substantive proceedings were heard. He remained on Level 10 outside the courtroom. 7 June 2013 Judgment in Class 4 Ross proceedings. Orders made requiring demolition of unauthorised works and rebuilding of specific aspects of the building within 90 days. Costs ordered against Mr Ross: Ross (No 14). 2 July 2013 First building certificate appeal discontinued. 17 July 2013 Costs judgment in respect of Class 1 Ross s 96 proceedings: Ross v Lane Cove Council [2013] NSWLEC 109. 23 Sept 2013 Class 4 Ross contempt proceedings commences by notice of motion for failure to carry out works required by the orders in Ross (No 14). 4 October 2013 Mr Ross files notice of appeal in the Court of Appeal in respect of the Class 4 Ross proceedings. 29 November 2013 Mr Ross makes application to adjourn Class 4 Ross contempt proceedings. Council conditionally consents on the basis of undertakings given by Mr Ross to the Court that he would seek expedition of the Court of Appeal proceedings and diligently prosecute them. The undertaking also provided that Mr Ross would conduct no work on the property until released from the undertaking. Mr Ross ordered to pay costs of the notice of motion filed 22 November 2013: Lane Cove Council v Ross (No 15) [2013] NSWLEC 206. 31 January 2014 Class 4 Chami proceedings commence. Short service granted. Costs reserved: Lane Cove Council v Chami [2014] NSWLEC 3. 10 February 2014 Injunction granted in Class 4 Chami restraining works on the Land. Ms Chami ordered to pay cost of Council's motion from 31 January 2014: Lane Cove Council v Chami (No 2) [2014] NSWLEC 11. 24 February 2014 Ms Chami lodges second application for a building certificate with the Council. 12 March 2014 Ms Chami restrained from residing at property from 23 April 2014 until an occupation certificate is issued. Costs reserved: Lane Cove Council v Chami (No 3) [2014] NSWLEC 18. 13 March 2014 Appeal allowed by Court of Appeal in Class 4 Ross proceedings. Orders in Ross (No 14) set aside. Remitted to LEC for further determination: Ross v Lane Cove Council [2014] NSWCA 50. 15 April 2014 Ms Chami joined by consent as a party to the Class 4 Ross proceedings. Matter stood over to 15 May 2014 to give parties time to prepare their evidence. 15 May 2014 Class 4 Ross stood over to 21 July 2014. 29 May 2014 Second building certificate application refused by the Council. 10 June 2014 Ms Chami commences Second Class 1 Chami building certificate appeal. 30 June 2014 Council motion in Class 4 Chami for orders for substituted service granted ex parte: Lane Cove Council v Chami (No 4) [2014] NSWLEC 89. 7 July 2014 Council motion in Class 4 Chami to obtain access to premises granted: Lane Cove Council v Chami (No 5) [2014] NSWLEC 93. 21 July 2014 Both Class 4 proceedings adjourned until Second Class 1 Chami building certificate appeal determined. 14 August 2014 Second Class 1 Chami building certificate appeal commences before Moore SC with Mr Ross representing Ms Chami. The appeal lasted 12 days: 14, 15, 18, 20, 21, 22 August, 14, 15 October and 14, 19, 20 and 21 November. 23 January 2015 Extensive works were required before the building certificate would be granted so proceedings stood over for 6 months. Interim judgment: Chami v Lane Cove Council [2015] NSWLEC 1003. 6 May 2015 Mr Ross, acting on behalf of Ms Chami, files notice of motion seeking to reopen Second Class 1 Chami building certificate appeal. 27 May 2015 Re-opening application heard. Moore SC varies his original orders: Chami v Lane Cove Council (No 2) [2015] NSWLEC 1206. 3 September 2014 Further judgment in Second Class 1 Chami building certificate proceedings requiring certain works be undertaken and certifications obtained: Chami v Lane Cove Council (No 3) [2015] NSWLEC 144. 11 November 2015 Final judgment in Second Class 1 Chami building certificate. Appeal upheld, conditional building certificate granted. Ms Chami ordered to pay Council's costs of the reopening application. No other order made as to costs: Chami v Lane Cove Council (No 4) [2015] NSWLEC 176. 2 February 2016 Class 4 Chami mention. 15 April 2016 Class 4 Ross mention. 18 April 2016 Council writes to Mr Ross seeking its costs in Class 4 Ross. No reply received. 3 May 2016 Council files notices of motion to discontinue the proceedings in Class 4 Ross and Class 4 Chami proceedings and seeks costs in both matters.

Evidence

1. The Respondents collectively tendered five exhibits in these proceedings. Exhibit 1 was a transcript of the directions hearing before Pepper J on 20 March 2013 at which Mr Ross made no appearance and Ms Benn solicitor appeared for Ms Edilbi (Ms Chami) who was not then a party in the proceedings. Exhibit 2 was a letter from Mr Ross to Mr Griffiths solicitor for the Council dated 17 March 2012. Exhibit 3 was a letter from Mr Griffiths to Mr Scott solicitor for Mr Ross dated 1 May 2015. Exhibit 4 was a bundle of documents handed up by the Respondents. It included the judgments of Dixon C and Biscoe J in the Class 1 s 96 appeal, a Class 1 building certificate application appeal filed by Ms Edilbi on 1 May 2013 and a letter from Ms Benn to Mr Griffiths dated 24 May 2014.
2. Exhibit 4 included three affidavits of Mr Ross. In the first affidavit sworn on 12 July 2012 Mr Ross outlined changes to the building inconsistent with the original development application (DA). He deposed that the plans submitted to the Council contained certain deficiencies and that modifications were necessary to meet structural and functional requirements. He also said that the Council was aware of these changes and took no action for three years. The second affidavit was sworn 17 April 2013. Only pars 2 and 3 of this affidavit were read. Mr Ross deposed that his s 96 application reduced the height of the building and improved the privacy impact by reducing the extent of balconies. In the third affidavit dated 13 May 2013 pars 13, 14 and 17 were read. Mr Ross said that during the s 96 appeal he formed an understanding based on the Commissioner's comments that rather than removing the issue of the awnings from the proceedings to have them determined by a building certificate application he would be required to demolish the physical awnings as a condition of any modified consent. Mr Ross thought that demolition of the awnings would have had serious implications for the rest of the building. On this basis he discontinued the s 96 appeal. Mr Ross also deposed that he had not been able to afford legal representation throughout these proceedings.
3. Exhibit 5 was an affidavit of Ms Chami sworn 28 February 2014. This purported to detail the outcome in the Second Class 1 Chami building certificate appeal with a view to emphasising how minor the works required were. For the reason given below in par 108 it is unnecessary to summarise this material.
4. The Council did not tender any evidence during the costs hearing. It relied on the findings made in various judgments in these proceedings and the judgments of Moore SC/AJ in the Second Class 1 Chami building certificate appeal.
5. On reviewing the transcript it appears that four further affidavits were referred to in part in these proceedings. They were in the Council's bundle of documents which was not tendered into evidence.
6. The affidavit of Mr Moore building surveyor at the Council dated 28 June 2012 stated that he visited the subject property on 10 May 2012 after the Council received complaints and gave his opinion as to the alleged unlawful building works that precipitated these proceedings. The affidavit of Mr Ross sworn 20 May 2013 pars 2 and 12 stated that the Council had urged him to lodge a s 96 appeal and ignored his offers to proceed by way of building certificate application or separate development application. He also referred to the statement of facts and contentions filed by the Council in the s 96 proceedings at Annexure D of that affidavit and a letter at Annexure E from his lawyer Mr O'Gorman-Hughes to Council solicitor Mr Griffiths dated 10 December 2012.
7. The third affidavit was sworn by Mr Nash town planner on 12 April 2013. It contained a joint expert planning report dated 14 December 2012 which was prepared in relation to the s 96 appeal. Mr Ross referred to the section headed "Contentions" which he said were the experts' responses to the contentions filed by Council in those proceedings. The fourth affidavit was also dated 12 April 2013 and sworn by Mr Nash. Mr Ross referred to the marked up plans of the property that were contained within that affidavit.
8. While none of this material was formally admitted into evidence it is referred to briefly to the extent it is relevant. Much of Mr Ross' additional material summarised above concerns the scope of the Class 1 Ross s 96 appeal and Second Class 1 Chami building certificate appeal. For the reasons I give below in par 108 this material is irrelevant to the determination of costs in these Class 4 proceedings.

Extracts from key judgments

1. In Ross (Nos 1-3) an interlocutory injunction was issued and continued.

Lane Cove Council v Ross (No 4) [2012] NSWLEC 191

1. Following the first substantive hearing on 13 August 2012 Pepper J held: … 7 Mr Ross admitted that the work carried out by him, the subject of these proceedings, is contrary to the terms of the consent. He did so in his own affidavit (sworn 12 July 2012 and read in the proceedings) and during the interlocutory hearing before the Court on 12 July 2012 (Lane Cove Council v Ross (No 2)). 8 The reasons Mr Ross gave for breaching the consent were: first, the works were necessary in order to complete the construction in an efficacious manner; second, the changes were contained within the approved building footprint and height envelope; third, the works would ordinarily have been approved by the council; and fourth, the council was, in any event, aware of the works. Mr Ross described the breaches as "technical". … 15 After a brief adjournment, it became apparent that there was in fact little dispute in respect of prayers for relief 1, 2 and 3 in the summons and that only the relief sought in prayers, 4, 5 and 6 were opposed by Mr Ross. Mr Ross therefore consented to the making of orders in the form sought in prayers for relief 1, 2 and 3 and did not ultimately read his affidavit dated 29 July 2012. 16 The council agreed to adjourn the hearing of the remainder of the summons until such time as it had the opportunity to consider Mr Ross' affidavit dated 29 July 2012, and, more importantly, to consider and assess the s 96 modification application lodged by Mr Ross on 10 August 2012. As the council informed the Court, it is possible that upon assessment of the s 96 modification application, the need to pursue the remainder of the relief in the summons may fall away. 17 Having regard to the overriding purpose contained in s 56 of the Civil Procedure Act 2005, it is "just, quick and cheap" to defer any further consideration of prayers 4, 5, and 6 for relief in the summons until such time as the council has had the opportunity of assessing the latest s 96 modification application lodged with it. Accordingly, the proposed cause of conduct suggested by the parties was endorsed by the Court. … 19 To do so is to denounce the deliberate conduct of Mr Ross in breaching the terms of the consent. It is also hoped that the making of the declarations within this judgment will act as a deterrent to others who may be minded to engage in unlawful building works (Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 at [20]).
2. Pepper J's conclusions and orders were: 23. The court, in conformity with the reasons above: 1. declares that alterations and additions to the dwelling house at 8 Bayview Street, Northwood ("the premises") have been carried out not in accordance with the Development Consent DA325/07 of the Lane Cove Council issued on 2 April 2008; 2. declares that the alterations and additions to the premises have been carried out in breach of s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 ("the EPA Act"); 3. orders that the respondent is restrained from carrying out any further development of the premises, in the nature of alterations and additions or other excavation, construction or building works, in breach of s 76A(1) of the EPA Act; 4. adjourns the final hearing (part heard) of prayers 4, 5, and 6 for relief in the summons filed 26 June 2012; 5. reserves the costs of today; 6. stands the proceedings over to 2 November 2012 for further directions at 9.15am before Pepper J; and 7. grants liberty to restore to the parties on 3 business days' notice

Lane Cove Council v Ross (No 6) [2013] NSWLEC 74

1. In a late application for an adjournment of the further hearing on 27-29 May 2013 made on 22 May 2013 Pepper J found: … 3 When the matter was listed for hearing on 20 March 2013, Mr Ross did not appear. This is so notwithstanding that he was in attendance on 27 February 2013, when the matter was relisted for further directions on 20 March 2013. 4 On 20 March 2013, Ms Benn attended the Court. Ms Benn appeared for what she claimed was the new owner of the property the subject of the unlawful development, Ms Hadia Edilbi. Ms Benn informed the Court that Ms Edilbi was the new owner/builder of the development the subject of these Class 4 proceedings and that she held an equitable interest in the property. Ms Benn was careful to state that she did not appear for Mr Ross. 5 Ms Benn sought an adjournment of the proceedings for two weeks so that Ms Edilbi could instruct her as to any application to join the proceedings as a party. On the basis that Ms Benn did not appear for a party in the proceedings and did not, at that stage, have instructions to make an application to join Ms Edilbi, the application was refused and a timetable was made for the preparation of the matter for hearing. 6 That timetable included, in addition to fixing the part-heard matter for hearing for three days in May, an order that Mr Ross was to file and serve his evidence and written submissions by 3 May 2013. The order has not been complied with. Liberty to restore on 48 hours notice was also ordered. At no point has Mr Ross sought to avail himself of this liberty prior to the filing of the notice of motion to adjourn the part-heard proceedings. 7 The application for the adjournment was argued in full and concluded at approximately 7pm. Due to the late hour, and the impending annual Land and Environment Court Conference held out of Sydney on 23 and 24 May 2013, the briefest of reasons were given by me in dismissing the application, with the promise of more fulsome reasons to follow. These are those reasons.
2. Her Honour dismissed the notice of motion ordering Mr Ross to pay the Council's costs.

Lane Cove Council v Ross (No 14) [2013] NSWLEC 87

1. Following a hearing on 27-29 May 2013 on whether further orders for relief (demolition and reinstatement) ought be made Pepper J found: … 37 The bringing of multiple applications for adjournments and the application for recusal, combined with Mr Ross' general conduct during the course of the hearing on 27, 28 and up to 2:30pm on 29 May 2013, gave rise to the overwhelming inference that over the two and a half days that he appeared before the Court, Mr Ross engaged in a calculated course of delay and obstruction in order to prevent the substance of the resumed proceedings being heard and determined. This was highly unfortunate. 38 Having exhausted all of his options to avoid the resumption of the proceedings by the luncheon adjournment of the third day of the three day hearing, it was made tolerably clear to Mr Ross that the hearing would, in the absence of any legitimate reason not to, continue. Mr Ross thereupon informed the Court that he was feeling nauseous and unwell and would not be able to continue participating in the matter. The Court informed Mr Ross that in the absence of cogent medical evidence supporting his claim of illness, the hearing would proceed in his absence. The Court warned Mr Ross that his failure to participate in the remainder of the proceedings could result in the orders for relief sought in prayers 4, 5 and 6 of the summons (which included an adverse costs order) being made. Mr Ross indicated that he understood and, at approximately 2:30pm, he departed the Court room and the proceedings continued on an ex parte basis. … 78 Although the Court made findings in Ross (No 4) that Mr Ross had built the dwelling other than in accordance with the terms of the consent, and therefore, had breached s 76A(1)(a) of the EPAA, I have, nevertheless, revisited these findings and reasonings in light of the additional evidence now put before the Court as a matter of fairness to Mr Ross. In my opinion, the findings made in Ross (No 4) must stand. There is nothing in the evidence before the Court in these resumed proceedings that suggests that these findings were erroneous. On the contrary, the evidence relied upon by the council in this resumed hearing, particularly the further evidence of Mr Moore and Mr Nash, reinforce the earlier findings of contravention of the EPAA made by the Court and confirm the appropriateness of orders 1, 2 and 3 made in Ross (No 4) (at [23]). … 80 As I found in Ross (No 6), this submission is misconceived. In my opinion, Mr Ross has already had the benefit of a merit assessment. It was his decision to remove the awnings from the s 96 modification application appeal before Dixon C. While his reason for doing so may have been genuine, he nevertheless cannot claim that he has not had the benefit of a merit assessment of the dwelling. It was his decision to remove the awnings from that appeal, and it was his decision to discontinue it. 81 Insofar as he asserts that the building certificate appeal should be permitted to proceed prior to the resolution of this matter, as the procedural chronology set out above demonstrates, Mr Ross or Ms Edilbi have had ample opportunity to appeal against the refusal to issue the certificate and have not proceeded in a timely manner. It is no coincidence, in my view, that the appeal against the refusal to issue a building certificate was not filed until approximately three weeks before this hearing was listed to commence. In any event, the Court can have regard under s 124(1) of the EPAA to the same matters and can take into account the same considerations in these proceedings that can be raised in any appeal under s 149F(3) of the EPAA. In these circumstances, there is every utility in proceeding to determine this Class 4 matter. … 84 But, this is not an end to the matter. It is sufficient for the purposes of s 124 of the EPAA that, by his own admission, Mr Ross is the person who carried out the unlawful works on the property and has expressed an intention to continue carrying out building works on the property. It was Mr Ross' evidence in cross-examination that as the engineer who designed the structure on the property, he is the person responsible for its continued construction and completion. I therefore find that Mr Ross continues to actively participate in the building works on the property and exercises control over them notwithstanding the change in ownership. The relief sought by the council may therefore be ordered against Mr Ross. … 89 The exercise of the Court's discretion must reflect the particular circumstances of the case before it. Having regard to the evidence before the Court, the Court finds as follows: (a) the impugned works were, as Mr Ross has admitted, carried out otherwise than in accordance with the consent. In this regard they were undertaken by Mr Ross without the required development consent and in contravention of the EPAA; (b) on any view, as the evidence of Mr Nash, Mr Moore and Mr Leedow demonstrates it cannot be said that the breaches of the EPAA are merely technical. I reject Mr Ross' submission to the contrary; (c) the impact of the unapproved works on the privacy and amenity of the neighbours is not insignificant as the evidence of Mr Nash and Mr Moore make evident; (d) as the evidence of Mr Leedow and Mr Moore discloses, it is not certain whether the structure as-built, given that the dwelling has not been constructed in accordance with the approved plans and drawings, is structurally sound, and therefore, safe; (e) by contrast, the evidence of Mr Leedow indicates that the removal of the unlawful works is viable and can be undertaken in a manner that results in a structurally sound building; (f) the conduct of Mr Ross is a relevant consideration (Willoughby City Council v Dasco Design and Construction Pty Ltd [2000] NSWLEC 257; (2000) 111 LGERA 422 at [77]; Glaser v Poole at [68] and Mihalopoulos at [50(b)]). In this regard Mr Ross has demonstrated in his dealings with the council and by his conduct during these proceedings a cavalier attitude with respect to the law. Even if, as an alternative to removal and remediation, a form of orders could be crafted permitting the structure to remain as-built, albeit with the imposition of conditions, the Court has no confidence that these conditions would be complied with; (g) conversely, there is no cogent evidence to demonstrate that the council should be denied relief by reason of its conduct in the proceedings. The council has, at all times, sought to resolve this matter by way of negotiation and settlement. I do not accept that the council has in any way engaged in delay that would disentitle it from the relief it seeks; and (h) although it is self evident from the evidence given by Mr Leedow and having regard to the scope of the unapproved works, that the impact of any demolition and reinstatement orders made by the Court will not be insignificant, this factor alone is insufficient to prevent these orders being made. In any event, the precise effect of a demolition and reinstatement order on Mr Ross is not known. This includes any finding as to the cost of complying with such orders. While I note the estimate given by Mr Leedow of the likely costs in this regard, I make no findings in respect of it given, as Mr Leedow acknowledged, he has no expertise in these matters.
2. Pepper J made the following orders at [94]-[95]: 94 The court therefore proposes to make the following orders: (1) that within 90 days Mr Ross demolish or cause to be demolished such unauthorised works to the dwelling house at 8 Bayview St, Northwood, New South Wales ("the property") as have been identified in paras 9 and 18 of the affidavit of Mr Adrian Moore affirmed 28 June 2012; (2) that within 90 days Mr Ross rebuild and/or reinstate the property in accordance with development consent DA 325/07 issued 2 April 2008 by Lane Cove Council ("the council"); (3) that the works identified in orders 1 and 2 are to be carried out in accordance with the recommendations in paras 4.1 to 4.5 in the report of Mr Kevin Leedow dated 11 April 2013, annexed to the affidavit of Mr Leedow sworn 12 April 2013; (4) that Mr Ross pay the council's costs of the proceedings as agreed or assessed; and (5) that the exhibits are to be returned. 95 In their current form the proposed orders lack requisite clarity and certainty. Accordingly, the parties are directed to file within seven days of the date of this judgment short minutes of order in conformity with the reasons above. Upon the filing of these short minutes of order the court shall either make the orders as filed if they are in a form satisfactory to the court, or alternatively, will relist the matter for further argument at a time and date notified to the parties. If further time is required to finalise the form of the orders, the parties may, by eCourt communication, apply for an extension of time to file the short minutes of order.
3. Final orders requiring demolition and reinstatement were made by Pepper J on 14 June 2013.

Ross v Lane Cove Council [2014] NSWCA 50

1. In the judgment on Mr Ross' appeal from Ross (No 14) the Court of Appeal held: … 79 For those reasons, I propose that the appeal be allowed and the orders made on 14 June 2013 be set aside. The proceedings should be remitted to the Land and Environment Court with a view to directions being given to regularise the proceeding. Ms Chami needs to be given, at the very least, an opportunity to be heard in relation to the orders sought by Council to the extent that they directly affect her. Alternatively, if indeed Council only intended the orders to be conditional upon Ms Chami's consent, they should be formulated so that that is clear on their face. 80 It is obvious even from the matters of which this Court is aware that there are special circumstances and complexities in this and related litigation (there are now pending proceedings commenced by the Council against Ms Chami and it may be that something has occurred that would impact upon what has been said in these reasons), and so it is especially inappropriate to constrain the flexibility of the Court below to take steps to regularise the proceedings. It may be that Ms Chami is joined and files a submitting appearance, or makes no submission against the orders. It may be that after being heard the outcome of the exercise of discretion is the same, although it may be different. 81 However, in the ordinary course, a council seeking to enforce a planning law in respect of land ought to join the registered proprietor. If during the pendency of those proceedings there is a transfer of title, the new registered proprietor ought ordinarily be joined. In some circumstances, the court can proceed without joinder, but it is ordinarily essential for the owner to be heard. The decisions referred to above suggest that this case is an exception to the ordinary course presently adopted by councils in such proceedings. 82 Lest there be any doubt about it, the final negative injunction made on 13 August 2012 was not the subject of this appeal and remains in force. … 84 The costs discretion at first instance will need to be re-exercised. It is conceivable that what happens in the future may produce a different outcome as to costs. However, to be clear, nothing in these reasons would necessarily prevent a further exercise of discretion that Mr Ross pay the entirety of the Council's costs at first instance. This Court does not enjoy the advantages of the court below in assessing Mr Ross' conduct in these proceedings, but prima facie it would appear that he has committed deliberate and sustained breaches of the obligation he is subject to in s 56(3) of the Civil Procedure Act to participate in the processes of the court and comply with its orders to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

Second Class 1 Chami building certificate appeal

1. The building certificate application lodged with the Council by Ms Chami on 24 February 2014 and refused on 24 May 2014 was appealed to the Court. The first hearing of the appeal occurred over 12 days between 14 August and 21 November 2014. Mr Ross appeared as agent for Ms Chami throughout the appeal.
2. In the first judgment handed down on 23 January 2015, Chami v Lane Cove Council, Moore SC provided in Schedule 1 to the judgment a list of works that were required before a building certificate could be issued. Ms Chami was given six months to complete these works, at [557]. Provision was made for an inspection by the Court and a short hearing upon the completion of these works, at [561]-[562], [567].
3. On 15 June 2015 Moore SC delivered Chami v Lane Cove Council (No 2) granting leave for Ms Chami to reopen the Class 1 application on a limited basis. The reopened hearing took place on 31 August and 1 September 2015 and resulted in the judgment of Moore AJ in Chami v Lane Cove Council (No 3). This hearing concerned the extent of compliance with the required works arising from the first judgment and structural safety issues relevant to the balcony at the western end of the building.
4. On 11 November 2015 the matter was finally determined in Chami v Lane Cove Council (No 4). An inspection of the property by the Court occurred on 23 October 2015 to ensure that the conditions set out in the first judgment and amended in judgment nos 2 and 3 had been complied with. This was the fourth inspection in these proceedings after earlier inspections on 14 August 2014, 19 November 2014 and 31 August 2015.
5. Moore AJ was satisfied that the conditions had been met and that Ms Chami should be issued a building certificate in the terms appended to the decision at [54] and annexure A. Moore AJ also made orders as to costs in the Class 1 appeal.

Council's submissions

1. The event referred to in r 42.1 of the UCPR can be the finding of a breach of the EPA Act. In relation to r 42.19, the Court of Appeal has considered whether the rule gives rise to a presumption, Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 at [54].
2. Informing the approach is Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 which identifies that a hypothetical trial on the merits should not be conducted to decide the question of costs. The circumstances in this case are those described in Ralph Lauren 57 Pty Ltd v Byron Shire Council (2014) 199 LGERA 424; [2014] NSWCA 107 at [31] of an extra curial supervening event caused by a defendant addressing the subject matter of the proceedings rendering them inutile in a practical sense.
3. The Council gave two principal reasons as to why it should be entitled to costs. The first is that Mr Ross effectively surrendered to the Council and the second is that Mr Ross engaged in unreasonable conduct throughout the proceedings.

Surrender

1. Notwithstanding r 42.19 UCPR, as per Lai Qin, the Council submitted that the filing of a building certificate application in January 2013 or s 96 application in 2012 constituted surrender by Mr Ross. These applications are an admission of breach of the EPA Act and should not be characterised as a supervening event in the civil enforcement proceedings. The Council gave four reasons which indicate that surrender had occurred.
2. Firstly, Mr Ross admitted that the works carried out were "contrary to the terms of consent", Ross (No 4) at [7]. Mr Ross later conceded that in respect of the breach he "had no leg to stand on", Ross (No 12) at [11].
3. Secondly, orders were made in relation to a breach of the EPA Act on an interlocutory basis in Ross (No 1) and Ross (No 2) and on a final basis in Ross (No 4). These proceedings were adjourned to allow for regularisation which did not occur until final determination of the Class 1 proceedings on 11 November 2015 in Chami v Lane Cove Council (No 4).
4. Thirdly, demolition orders were made in Ross (No 14). While these were overturned on appeal (due to the failure to join Ms Chami as a party) Mr Ross and Ms Chami ultimately made no submissions as to why the orders ought not be made and merely contended that a merit assessment ought to happen first.
5. Fourthly, while a building certificate was ultimately obtained it was done on conditions which required work that was tantamount to the demolition and remediation orders that would have been made in Class 4 proceedings. Moreover, these conditions took 11 months to fulfil.
6. The Council maintained that the mere acknowledgment by Mr Ross that a building certificate or s 96 modification approval were needed to regularise the illegal works constituted surrender. Therefore, the fact that a different person (Ms Chami) ultimately pursued the building certificate was not significant as it still formed part of the same surrender.

Unreasonable conduct in course of litigation

1. The Council contended that Mr Ross acted unreasonably throughout these proceedings so as to delay the making of a final determination in both the Class 4 and Class 1 merit assessment until after the building works had been completed.
2. Firstly, there was considerable delay in bringing the matter to resolution. This occurred between 13 August 2012, when orders were given in Ross (No 4) declaring Mr Ross to be in breach of development consent, and 11 November 2015 when the merits assessment was finally determined in Chami v Lane Cove Council (No 4). The Respondents' delay in bringing and then prosecuting a building certificate application forced the Council to bring separate civil enforcement proceedings against Ms Chami. If Class 1 proceedings had been properly prosecuted in a timely manner there would have been reasonable grounds for an adjournment of the Class 4 proceedings until such time as the merits assessment had been resolved. This would have vitiated the need in these proceedings for the hearing on 27-29 May 2013. The Council relied on statements made by Pepper J in Ross (No 12) at [9] and Ross (No 14) at [81] to support this contention.
3. Secondly, Mr Ross made a number of late, unreasonable and unwarranted interlocutory applications which amounted to unreasonable conduct. The Council listed a number of examples to support this contention. There was no explanation for Mr Ross's failure to seek an adjournment of the Class 4 Ross proceedings after he discontinued the Class 1 Ross s 96 on 29 January 2013. An adjournment application was not filed until 22 May 2013 at 5:30pm with the hearing of the substantive proceedings due to commence on 27 May 2013 (the next sitting day of the Court), see Ross (No 6). This was unreasonable considering Mr Ross knew the matter was listed for hearing pursuant to directions made on 20 March 2013. Mr Ross also caused unreasonable delay by making a number of interlocutory applications throughout the three day hearing on 27, 28 and 29 May 2013. These applications were all dealt with extemporaneously, see Ross (No 7), Ross (No 8), Ross (No 9), Ross (No 10), Ross (No 11), Ross (No 12) and Ross (No 13). Costs were awarded in Ross (No 11) and Ross (No 12) and the Council is seeking costs for the remaining applications and the delay caused to the hearing of the substantive proceedings.
4. Thirdly, the Council adverted to the fact that Mr Ross had consistently disobeyed procedural orders. He did not file evidence in accordance with any timetable set during the Class 4 proceedings. The Council contended that this was done deliberately to try and leverage adjournments and cause further delay. The Court of Appeal in Ross v Lane Cove Council at [84] supported this argument when it was said that "prima facie it would appear that [Mr Ross] has committed deliberate and sustained breaches of the obligation he is subject to in s 56(3) of the Civil Procedure Act to participate in the processes of the court and comply with its orders to facilitate the just, quick and cheap resolution of the real issues in the proceedings".
5. Fourthly, Mr Ross was physically late to court appearances on several occasions including 12 July 2012. The Council also contended in oral submissions that Mr Ross was often unprepared for court and wasted time as a result.

Appeal upheld in Court of Appeal

1. The Council submitted that its failure to join Ms Chami as a party to the proceedings was a procedural irregularity that resulted in the appeal being upheld in the Court of Appeal. The orders made in Ross (No 14) affected Ms Chami as the registered owner of the subject property therefore she ought to have been joined as a party as a matter of procedural fairness. The Court of Appeal's decision did not affect its ability to seek costs for the three day hearing at first instance which eventuated in the judgment that was overturned on appeal, nor for the numerous interlocutory applications that were heard during that hearing.

Issues not trifling

1. The Council did not accept Mr Ross's assessment that the conditions required before a building certificate could be granted were trivial. It relied on the conclusions of Moore SC in Chami v Lane Cove Council at [548] that although "some changes were trifling in impact, neutral or beneficial" others "are not able to be so characterised".

Mr Ross' submissions

1. Mr Ross made the following submissions in support of his application that the Council should pay the Respondents' costs for both Class 4 proceedings on an indemnity basis (which it is found cannot be pressed in any event) and that the Respondents are not liable to pay the Council's costs.

Class 4 proceedings ought never to have been commenced

1. The changes made to the building that were inconsistent with the original development application were necessary and beneficial to the neighbouring amenity. They were improvements in terms of the code and disadvantaged Mr Ross and Ms Chami as owners. This result was evident from the expert evidence presented and judgment in the s 96 appeal, Ross v Lane Cove Council [2012] NSWLEC 1364.
2. The modifications to the original development application merely constituted a "technical breach" of the EPA Act as they were necessary to meet structural and functional requirements. When works started some deficiencies in the original plans came to light leading Mr Ross to engage an architect to prepare s 96 documentation. By June 2012, the majority of the alleged unlawful works had already been completed. The house was "substantially complete" save for the top floor which meant that any changes from this point must have occurred within the approved building envelope. Proposed changes that had not yet been carried out should have been overlooked by the Council as they fell within the approved footprint and envelope as is common industry practice. They did not justify the instigation of Class 4 proceedings on 28 June 2012.
3. The Council acquiesced to the works being undertaken for three years prior to civil enforcement proceedings commencing. It was common knowledge that building started in 2009. There were regular inspections by the Council or a private certifier from the commencement of construction without issue. Mr Thomas for the Council and Mr Ross's private certifier Mr Boyce had agreed that certain unapproved works concerning excavations needed to take place to support the building.
4. Class 4 proceedings were only instigated after the Council lost a local court action against Mr Ross in relation to the removal and impounding of a jet ski and trailer belonging to Ms Chami. Mr Ross described the Council as "vindictive" and the Class 4 proceedings as a "public funded relentless onslaught by the Council".

Council should have discontinued Class 4 proceedings in January 2013

1. Mr Ross provided two reasons for why the Council ought to have discontinued Class 4 proceedings in January 2013. Firstly, the Council was on notice that there had been a change in ownership of the property from Mr Ross to Ms Chami. Secondly, the Council was on notice that civil enforcement was futile after the judgment in the Class 1 Ross s 96 appeal.

Change in ownership

1. The Council was on notice about the change of ownership as of January 2013 and they ought to have discontinued or at least joined Ms Chami as second respondent to the Class 4 Ross proceedings.
2. The discontinuance or joinder should have occurred after a building certificate application was lodged with the Council on 16 January 2013. This application was lodged by Ms Edilbi in Mr Ross's name. This preceded Mr Ross's discontinuance of the s 96 appeal on 29 January 2013. The discontinuance therefore did not affect the point at which the Council should have ended Class 4 proceedings.
3. On 30 January 2013 the Council responded to the first building certificate application by requesting further information. None was produced because all the documents sought were already in the Council's possession as they were relevant to the ongoing s 96 appeal. The Council refused the application in March 2013. The Council ought to have made inquiries as to who Ms Edilbi was. Had they done so they would have discovered that she was in fact Ms Chami and that a transfer in ownership had occurred.
4. On 20 March 2013 Ms Benn solicitor appeared before Pepper J in a directions hearing in this matter purporting to act for Ms Edilbi who she said was the new owner/builder of the property. Ms Benn also clarified that Mr Ross was still the current registered owner and was the defendant. Ms Schofield solicitor for the Council said that they had performed a title search on the property on 11 March 2013 which confirmed Mr Ross as the registered owner. Mr Ross was not present or otherwise represented at this hearing. He asked the Court in these costs proceedings to draw the inference that Ms Benn knew that the transfer of ownership had not been registered and that nothing she said was inconsistent with that fact. Moreover, this did not absolve the Council of responsibility for actually knowing, or at least checking, that the change in ownership had occurred. The failure to join Ms Chami in the proceedings rendered all intervening proceedings futile, see par 63 below.
5. Mr Ross said that the Court of Appeal in Ross v Lane Cove Council confirmed that all proceedings involving Mr Ross alone after January 2013 were "unlawful" as they were not enforceable without the joinder of Ms Chami.

Class 4 proceedings were futile

1. The approval of a building certificate application by Moore AJ in Chami v Lane Cove Council (No 4) confirmed that both Class 1 proceedings had merit. Therefore, the Class 4 proceedings ought never to have commenced against Ms Chami and should have been discontinued (or not commenced in the first instance) against Mr Ross after the judgment in the s 96 appeal.
2. Although final orders were never made by the Commissioner the Class 1 s 96 appeal nevertheless involved a detailed assessment of the building works that were the subject of this dispute. The judgment in Ross v Lane Cove Council [2012] NSWLEC 1364 confirmed the favourable findings and recommendations of the experts. In other words, the Council was on notice by the s 96 appeal that the civil enforcement proceedings against Mr Ross were futile and it was unconscionable for them to continue. The matter should have ended in December 2012 as it finally did before Moore AJ in November 2015. The absence of final orders before the discontinuance of Mr Ross on 29 January 2013 did not invalidate this process. The discontinuance simply delayed the inevitable, favourable outcome for Mr Ross and Ms Chami. The discontinuance was also not unreasonable, see par 69 below.
3. Mr Ross and Ms Chami obtained a far better result in the Second Class 1 Chami building certificate appeal in 2015 compared to the Class 1 Ross s 96 appeal in 2012. To show this Mr Ross relied on a comparison between Moore SC's judgment in Chami v Lane Cove Council which set out at [38] the measures sought by the Council before they would issue a building certificate and the Council's statement of facts and contentions in the Class 1 s 96 appeal (annexed to his affidavit sworn 20 May 2013).
4. Conditions of approval in the building certificate determination were significantly less than for the s 96 approval. Mr Ross also made significant concessions in the s 96 appeal that were not made in the building certificate matter. Ms Chami received favourable outcomes as to privacy screens and the deletion of a south facing balcony whereas the Council "lost ground" on most of its contentions. Moreover, the Council had refused an offer to reinstate the decision of the Commissioner which predated Moore AJ's final determination in the Class 1 building certificate appeal. A letter dated 1 May 2015 from Mr Griffiths solicitor for the Council to Mr Scott solicitor for Mr Ross in which it was written that "[Council] is not prepared to consent to a re-agitation of issues already decided upon by Commissioner Dixon".
5. This showed that the Council ignored the s 96 proceedings and nevertheless pursued demolition orders through the Class 4 proceedings. These orders, which were obtained in Ross (No 14), would have amounted to an effective demolition of the entire building. The Court made these orders based on incompetent and misleading advice from the Council who lacked the relevant expertise to deal with this case. The Council should have understood that it was clear from the s 96 proceedings that the Respondents would win on the merits and abandoned the Class 4 proceedings.

No delay

1. There are several components to the rebuttal of the Council's contention that the Respondents engaged in a deliberate pattern of obfuscation and delay.

Section 96 discontinuance not unreasonable

1. In 2012, the Council forced Mr Ross to seek regularisation of the unapproved works through s 96. It then repudiated its offer by contending that the works had rendered the property substantially not the same as the approved development and not within the ambit of s 96, Ross v Lane Cove Council [2013] NSWLEC 109 at [32]. Mr Ross was denied the opportunity to settle the matter in 2012 with a building certificate application as had always been his intention. This caused a delay in proceedings through no fault of his own. All subsequent delays claimed by the Council were unfounded.

No delay in making building certificate application

1. The Council's submission that the Respondents delayed making a building certificate application to stymie proceedings is false because the Council itself frustrated the s 96 appeal leading to a not unreasonable discontinuance. Mr Ross relied on a letter from his lawyer Mr O'Gorman-Hughes to Mr Griffiths dated 10 December 2012 and annexed to Mr Ross's affidavit sworn 20 May 2013 to show that the Council was offered an opportunity to deal with the matter via a building certificate application and it refused. Had the Council accepted this offer these entire proceedings could have been dispensed with by January 2013. By not accepting the offer the Council failed to allow merits assessment to precede the Class 4 Ross matter as is standard practice in this Court.
2. Mr Ross was not also unreasonable in his interpretation of the Commissioner's comments in the hearing of the s 96 appeal regarding the removal of awnings from the application, citing the judgment of Biscoe J in Ross v Lane Cove Council [2013] NSWLEC 109 at [33]. Mr Ross submitted that Mr Griffiths solicitor for the Council deliberately misled the Court in the Class 1 proceedings such that the Commissioner arrived at the mistaken impression that there had not been an agreement between the parties to remove the awnings from the s 96 application but rather their physical removal from the building.
3. Mr Ross also "substantially succeeded in the proceedings", at [34]. Indeed, Biscoe J held in his judgment on costs in the s 96 appeal that it was not unreasonable for Mr Ross to discontinue the appeal, at [35].

First building certificate application

1. A building certificate application in respect of the awnings was filed on 16 January 2013 by Ms Edilbi in Mr Ross's name. This preceded the finalisation of the s 96 appeal. Therefore it cannot be said that there was any delay in the filing of this application. Upon the discontinuance of the s 96 appeal on 29 January 2013 it became clear that another building certificate application was needed which led to the delay in filing a second application on 24 February 2014.
2. The delay alleged by the Council in not pursuing the first building certificate application in a timely manner was unfounded. The refusal of this application was mailed to the street address of Ms Edilbi on 12 March 2013 and not received in time to lodge an appeal before the next directions hearing on 20 March 2013. The hearing dates for the substantive Class 4 Ross proceedings were subsequently set down following the Council's misleading submission that the Respondents were attempting to delay proceedings. Mr Ross later made several adjournment applications on proper grounds which were dismissed.

No further delay

1. Mr Ross opposed the Council's contention that he had failed to comply with almost every order made in this Court as to timetabling and the filing of evidence and submissions. He was overseas before this costs hearing which caused him not to file his documents in accordance with the Court's timetable. On other occasions ex parte interlocutory judgments were unfairly made against him when he was only 5 or 10 minutes late to the Court. Neither he nor Ms Chami had any cause to delay the proceedings. They have both been disadvantaged by their inability to obtain legal representation (though not through lack of trying) and have been treated unfairly by the Court.

Mr Ross liable for Council's costs

1. The Court must consider the exercise of its discretion to award costs under s 98 of the CP Act in the circumstances of this case. Rule 42.19 of the UCPR must be considered as to whether the Court should make an "otherwise" order. Costs are compensatory, not punitive per Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59. A useful summary of relevant principles appears in LexisNexis Butterworths, Ritchie's Uniform Civil Procedure NSW, vol 1 (at Service 81) at [42.19.5] which states [42.19.5] Costs where proceedings discontinued The result of either discontinuance under the present rule (or dismissal under UCPR r 42.20) is that the costs must be paid by the discontinuing party - "unless the court orders otherwise". The court's power to "order otherwise" than one of the prescribed default orders preserves the court's discretion as to the appropriate costs outcome. Because of this residual discretion it has been said that the rules do not give rise to a formal presumption that the mere fact of discontinuance (or dismissal under UCPR r 42.20) itself justifies a costs order against the discontinuing party: Fordyce v Fordham (2006) 67 NSWLR 497; [2006] NSWCA 274; BC200607906; Australiawide Airlines Ltd (t/as Regional Express) v Aspirion Pty Ltd [2006] NSWCA 365; BC200611167 at [53]. Nevertheless, the discontinuing party must provide a proper basis for any costs order different from the conditional direction contained in the rules: Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32; BC200901405 at [54]; Australiawide Airlines Ltd (t/as Regional Express) v Aspirion Pty Ltd [2006] NSWCA 365; BC200611167 at [10]. One matter for consideration in the exercise of that discretion will be the reason the proceedings were discontinued or dismissed but it is not necessarily a determinative consideration: Fordyce v Fordham [2006] NSWCA 274; BC200607906 at [84]ff (interlocutory proceedings where substantive proceedings did not proceed to final determination: parties ordered to pay own costs) ...
2. In Bitannia Basten JA provides a nuanced approach to these principles at [72]-[75]: [72] One question raised in these proceedings is the relevance of the default provision with respect to the exercise of the discretion to otherwise order. In Fordyce v Fordham [2006] NSWCA 274; 67 NSWLR 497, McColl JA (Beazley JA agreeing) concluded that the "default orders do not create a presumption" that the plaintiff ought to pay the costs of the proceedings: at [84]. Her Honour also indicated that the default order is "a relevant, but not determinative, consideration". [73] The use of the term "presumption" in this context is unclear and was properly rejected. In some circumstances, a presumption may do no more than indicate on which party lies the onus of proof of primary facts. In other cases it will supply evidence of the fact presumed: see McCormack v Federal Commissioner of Taxation [1979] HCA 18; 143 CLR 284 at 314 (Jacobs J). In other cases again, clearly not relevant to the present circumstance, it may be a way of stating a rule of law, as with respect to the capacity of a young child to form a relevant criminal intent. In other circumstances, the burden of persuasion may be expressed in terms of a presumption. For example, in Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; 94 CLR 621 at 627, Kitto J expressed the principle limiting appellate review of discretionary judgments in terms that "there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong". This range of meanings undoubtedly renders adoption of such terminology undesirable. [74]…Rather, it is the underlying reason for the default position with respect to costs that may bear upon the exercise of the discretion. A party which seeks to discontinue must generally, in a relevant sense with respect to costs, be treated as an unsuccessful party. The general costs rule set out in s 98 of the Civil Procedure Act 2005 (NSW) does not identify the limits of the court's discretion with respect to costs. The most important limitation for present purposes is the requirement that, again subject to the court otherwise ordering, costs should follow the event: see r 42.1. If that rule were to be applied, absent persuasion that the court should otherwise order, the plaintiff would be required to pay the costs of discontinuance. It seems likely that it is consistency with that general principle which underlies the default consequence provided in r 42.19. If that rule has application with respect to a discontinuance (and no reason was proffered as to why it should not) the discretion to make a costs order under r 42.19 will be confined by that general principle. In that respect, it may be misleading to describe the discretion under r 42.19 as "unconfined": see Fordyce at [87]. In some cases (though not necessarily all) discontinuance will involve the termination of proceedings without the court knowing what the result would have been had they been determined on the merits. In one sense, the existence of a hearing on the merits may be largely irrelevant, just as the actual result of a hearing on the merits will not be affected by the fact that the proceedings might have been run differently and might then have achieved a different result. [75] There are, nevertheless, circumstances in which it is entirely appropriate for the court, by order, to depart from the consequence provided by the rule. For example, discontinuance may result from the plaintiff obtaining a favourable result in other proceedings, in circumstances where it had not been unreasonable to commence the discontinued proceedings…
3. An example of where an otherwise costs order might be made is where costs have been significantly increased by the unreasonable conduct of the opposing party, Bitannia at [47]; Ralph Lauren at [108]-[109].
4. The Council bears the onus of establishing that the indicative rule in r 42.19 should not be made but that an "otherwise" order is appropriate. As identified in Ralph Lauren at [22] there are no fixed categories of when an "otherwise" order might be made.

Class 4 proceedings properly commenced

1. Mr Ross submitted that the Class 4 proceedings were not properly commenced. It is frankly too late given the history of this matter to make such an argument. The near finality of these proceedings and the Court's determination of unlawful development is outlined above. An interlocutory injunction was successfully applied for and continued in Ross (Nos 1-3). The extracts of Ross (No 4) above in pars 23-24 and Ross (No 14) in pars 27-28 identify the basis on which declarations and orders were made by the Court. The Court had before it evidence of unlawful building work and Mr Ross's admission of this. These extracts confirm the Class 4 proceedings were properly commenced. Mr Ross's opinion that they were not properly commenced because the admitted breaches of the EPA Act were technical and should have been ignored are immaterial and are not available in any event given the findings of the Court identified in Ross (No 4) and Ross (No 14). Nor does the Court accept his submission of his opinion that the Class 4 proceedings were vindictive. It is also too late to argue the Class 4 proceedings should have been commenced earlier based solely on unsubstantiated submissions from Mr Ross.

Outcome of Class 4 Ross proceedings

1. The particular circumstances which have resulted in the application to discontinue by the Council require consideration. These lengthy Class 4 proceedings commenced in July 2012 against Mr Ross and were litigated to finality with the delivery of Ross (No 4) on 13 August 2012 and Ross (No 14) on 7 June 2013 and the making of declarations and final orders in terms largely sought by the Council. But for the appeal by Mr Ross in relation to Ross (No 14) the matter would have been at an end in a legal sense when orders granting relief by way of demolition and restoration were made on 7 June 2013. The Council having been successful at that point, the event then informing any costs decision, the Court made a costs order in the Council's favour for the proceedings.
2. It is necessary to consider the effect of the Court of Appeal decision. While Mr Ross was successful in his argument that Ms Chami should have been joined as a party in the Court proceedings the Court of Appeal expressly states at [82] that the orders made in August 2012 (Ross (No 4)) were not affected. As the Council submitted the failure to join Ms Chami can be characterised as a procedural breach. Ross (No 14) was set aside and the matter remitted in order to formally join Ms Chami and determine if she wished to make any submissions on the orders sought by the Council. The Court could then consider any such submissions in determining whether to make orders and on what terms. The underlying conclusions of the Court in Ross (No 14) were otherwise undisturbed. The Court of Appeal decision does not render these enforcement proceedings against Mr Ross unlawful, contrary to Mr Ross' submissions. For reasons below the Court does not consider there was any disentitling conduct by the Council in these Class 4 proceedings so the usual costs rule could be considered to apply again as an "otherwise" order available under r 42.19.
3. The substantive legal result in these proceedings is known so this is not the situation referred to by Basten JA in Bitannia at [74] of the discontinuing party being treated as an unsuccessful party.
4. While the Court has had to deal with substantial argument which will be considered below, the virtually finalised state of these Class 4 proceedings suggests that the usual expectation of a council enforcing the planning laws that its costs be paid by a respondent who admits unlawful development work applies.

Class 4/Class 1 proceedings in civil enforcement matters

1. Another basis for the discontinuing party obtaining costs is where the desired result is obtained in other proceedings as referred to in Bitannia at [75], see also Ralph Lauren at [31]. Where civil enforcement matters are commenced in Class 4 of the Court's jurisdiction as in this case the Court has a practice of standing over such proceedings to enable a respondent to seek to regularise unlawful building work to the extent possible in Class 1 merit appeal proceedings, whether by s 96 modification application or building certificate application. This practice is underpinned by s 124(3) of the EPA Act which provides: Division 3 Orders of the Court … 124 Orders of the Court … (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may: (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.
2. The Class 1 proceedings do not replace or cancel out the civil enforcement proceedings. The Court makes these observations because Mr Ross's submissions were based on an incorrect understanding of the different functions provided by the separate and distinct types of proceedings in the Court.
3. The outcome in the Class 1 proceedings whereby a merit assessment occurred and a building certificate was issued can be described as the Council achieving the outcome sought in the Class 4 proceedings. A successful merits appeal means that a council achieves the result it seeks because the unlawful development work is rendered lawful or at least regularised to some degree.

Surrender

1. The Council addressed yet another way to consider the merit appeal proceedings. The Council relied on the 2012 s 96 application by Mr Ross and the January 2013 building certificate application by Ms Edilbi as evidence that Mr Ross effectively surrendered to the Council. This is supported by the Council's four reasons set out at par 40-43. The Court agrees with this submission for the reasons given by the Council.
2. The effect of the s 96 application and Mr Ross's subsequent admission of carrying out development in breach of the EPA Act in Ross (No 2) at [18] (see also Ross (No 4) at [7] and Ross (No 12) at [11]) can be characterised as surrender to the Council's civil enforcement case. During the period from 2 July 2013 to 24 February 2014 in which the Respondents did not have a building certificate application pending before the Council, the surrender continued to apply by virtue of these admissions.

Class 1 Ross s 96 appeal (no disentitling conduct by Council)

1. Mr Ross relies on his s 96 appeal proceedings in several ways.
2. The fact that in the course of the s 96 proceedings considerable agreement was reached as a result of amended plans being prepared following discussions amongst the parties, as is clear from Ross v Lane Cove Council [2012] NSWLEC 1364, is irrelevant to this costs application. Those proceedings were ultimately discontinued by Mr Ross. The Court does not need to make any specific finding whether Mr Ross doing so was reasonable or not. Statements of Biscoe J in his costs judgment in the Class 1 Ross s 96, Ross v Lane Cove Council [2013] NSWLEC 109, do not provide any proof of the contention that the Council was responsible for the discontinuance.
3. Mr Ross submitted that the Council should have discontinued Class 4 proceedings when it became clear through the s 96 appeal that the Respondents would succeed on the merits. Firstly the Court does not accept that the Council ought to have drawn this conclusion. The lengthy process required to eventually resolve in 2016 the Second Class 1 Chami building certificate proceedings before Moore SC/AJ is evidence that this matter was not straightforward nor was it inevitable that the Respondents would succeed.
4. Secondly for the reasons given above in pars 85-87 about the different functions of Class 4 enforcement proceedings and Class 1 merit appeals this submission lacks legal foundation.
5. The Class 1 Ross s 96 appeal was discontinued by Mr Ross in January 2013. Those proceedings therefore had no legal (or practical) consequence for the resolution of the Class 4 Ross proceedings which had been adjourned and were set down for hearing after the discontinuance.
6. Mr Ross also submitted that he pursued a s 96 modification application in the second half of 2012 instead of a building certificate application because the Council suggested that he do so. This contributed to the delay in the resolution of a merit hearing according to Mr Ross. Mr Ross relied on a letter from his then legal representative dated 10 December 2012 suggesting if the s 96 modification application was not successful how a merit assessment could be achieved in a timely manner through a further application by Mr Ross to the Council. The s 96 application is part of the unfortunate history of these collective proceedings. Having been discontinued by Mr Ross at a very late stage, following a judgment of the presiding commissioner to the effect that development consent would be granted subject to amended plans being provided, the Court draws no conclusion about any contribution to delay by the Council on this aspect of the matter.
7. No disentitling conduct of the Council in relation to the s 96 appeal is established by Mr Ross.

Substantial delay in building certificate applications

1. The Council alleges substantial delay in the pursuit of a building certificate application. Both parties stated that Ms Edilbi filed a building certificate application on behalf of Mr Ross in January 2013, although it is noted that the building certificate application form dated 16 January 2013 in evidence identifies only Mr Ross as the applicant and is signed by Mr Ross. It related to awnings already built and was refused by the Council on 12 March 2013. An appeal against refusal was filed in this Court on 1 May 2013. While on foot as at 27-29 May 2013 that Class 1 appeal was withdrawn on 2 July 2013. Judgment in Ross (No 14) was delivered on 7 June 2013. The second building certificate application made by Ms Chami for a wider scope of works was lodged with the Council several months later on 24 February 2014. In the Class 4 Ross proceedings all the judgments for which costs are sought in this notice of motion were determined before the discontinuance of the first building certificate application on 2 July 2013.
2. Mr Ross said that upon discontinuance of the s 96 appeal the Respondents realised that the first building certificate application would not cover the scope of works required to regularise all the changes to the property and that a second application was needed. Mr Ross did not explain why the first building certificate application relating to the awnings was not discontinued soon after the discontinuance of the s 96 appeal or the Council's refusal of it on 12 March 2013. Nor did he explain why the second building application of Ms Chami was not filed until 24 February 2014. But for the Court of Appeal judgment the Class 4 Ross proceedings were at an end in mid-2013. Two judgments had already been delivered in the Class 4 Chami proceedings by February 2014. The Respondents had ample opportunity to demonstrate to the Council and the Court that they were attempting to resolve the matter by way of a comprehensive building certificate. They did not do so in a timely manner.
3. The Court does not accept the Respondents' submission that it was through the fault of the Council that a merits assessment was unable to take place before the Council pressed ahead with the Class 4 Ross proceedings in 2013. A glaring failure by Mr Ross was not applying for an adjournment of the hearing of 27-29 May 2013 shortly after this was set down. Mr Ross did not appear on 20 March 2013. Mr Ross claimed that the refusal of the first building certificate by the Council on 12 March 2013 was not known on that date. Accepting that, the Respondents are likely to have been aware shortly afterwards. Reliance on Ms Benn's appearance for Ms Edilbi by Mr Ross is misplaced. As observed by Pepper J in Ross (No 6) at [4]-[5] Ms Benn did not appear for a party in the proceedings.
4. The Court does not accept the Respondents' submission that the Council was unreasonable in continuing these Class 4 proceedings because of their knowledge of the first building certificate application appeal. The Council agreed to stay the Class 4 Ross proceedings on 8 November 2012 pending the outcome of the s 96 appeal. After that appeal was discontinued the Council moved ahead with the Class 4 Ross proceedings resulting in Ross (Nos 4-15). The Council pursued the Class 4 proceedings during periods when the merit assessment had stalled.
5. The Court's usual practice of allowing Class 1 matters to precede finalisation of civil enforcement proceedings in Class 4 did not entitle Mr Ross or Ms Chami to stay either of the Class 4 proceedings indefinitely. It was incumbent upon the Respondents to attempt to regularise the illegal works in a timely manner.
6. The Respondents' failure to diligently and promptly pursue a merit assessment of the unlawful building works following the discontinuance of the s 96 application appeal caused additional delay in these proceedings. I find that there was unreasonable delay by Mr Ross and Ms Chami in pursuing a Class 1 appeal for the building certificate application ultimately determined by this Court. The Court also takes into account that unreasonable behaviour in considering the making of an "otherwise" order under r 42.19 of the UCPR.

Change of ownership (no disentitling conduct by Council)

1. Mr Ross submitted that the Council was on notice about the transfer of ownership of the property from Mr Ross to Ms Chami from at least January 2013. The Council ought therefore to have joined Ms Chami in the Class 4 proceedings at that time and discontinued the proceedings against Mr Ross altogether. The Court does not accept this submission. The Court was not provided with any evidence that suggests the Council knew or ought to have known about the change of ownership before May 2013.
2. The Respondents themselves put on evidence that contradicted this submission. Ms Chami in her affidavit sworn 28 February 2014 said that she became the registered owner of the property in May 2013. Annexure 7 of that affidavit included a building certificate application lodged on 16 January 2013 in Mr Ross's name which listed him as the owner/builder of the subject property. The letter of refusal for that application dated 12 March 2013 was addressed to Mr Ross and also listed him as the owner.
3. Mr Ross tendered the transcript of proceedings before Pepper J on 20 March 2013 (Exhibit 1) which also did not assist his submission on ownership. At this directions hearing Ms Benn solicitor appeared stating that she acted for Ms Edilbi who she said was the new owner/builder of the property. However, she also agreed that Mr Ross was still the current registered owner of the land and her client had an equitable entitlement to the land pursuant to a trust. Ms Schofield solicitor for the Council said that a title search on the property on 11 March 2013 confirmed that Mr Ross was the registered owner at that point. Mr Ross made no appearance on that date.
4. The Court accepts the Council's submission that it was not aware of the transfer before late May 2013 when Mr Ross served an affidavit sworn by him on 20 May 2013. Annexed to that affidavit at "H" was evidence of a title search of the property which listed Ms Chami as the owner and was dated 16 May 2013.
5. The Court does not accept therefore that proceedings should have been discontinued against Mr Ross in January 2013. Nor was there any disentitling conduct by the Council in relation to this matter.

Detail of merit assessment by Moore SC/AJ irrelevant

1. Mr Ross made numerous detailed submissions about the Second Class 1 Chami building certificate appeal before Moore SC/AJ to seek to demonstrate changes required were trivial and confirmed what he had always intended (for example removing the second kitchen, see Chami v Lane Cove Council at [240]-[248]). Much of the evidence he referred to in those parts of his affidavit read, as outlined above in pars 18-21, and Ms Chami's affidavit dated 28 February 2014, were directed to this argument.
2. A simple reading of the four judgments by Moore SC/AJ and the process engaged in, which included four Court inspections, identifies the complexity of the merit assessment undertaken in the building certificate appeal. These proceedings are outlined above at par 31 and following. As the Council identified, Moore SC said that he considered some of the changes were trivial and others not trivial, see above par 51.
3. The Second Class 1 Chami building certificate appeal process and outcome does not support a submission by Mr Ross that these Class 4 proceedings are misconceived or should have been discontinued earlier. Mr Ross' submission confuses the role of these civil enforcement proceedings with a merit assessment undertaken in Class 1 appeal proceedings. The different types of proceedings serve different purposes, as addressed above.

Substantial delays by Mr Ross in Class 4 Ross proceedings

1. The lengthy chronology provides some indication of the protracted and inevitably expensive nature of the proceedings in the Class 4 Ross proceedings given the large number of interlocutory matters determined and the large number of direction hearings held (for example 1 November 2012, 8 November 2012, 19 December 2012, 1 February 2013, 7 February 2013 and 20 March 2013), particularly after delivery of Ross (No 4).
2. The dilatory or absence of compliance with court orders by Mr Ross made to progress the proceedings has been noted by the Court and the Court of Appeal. Mr Ross's failure to comply with the timetable for the filing and service of evidence was noted in Ross (No 6) at [6] and Ross (No 14) at [29], [34]. In Ross (No 10) at [3] Mr Ross was refused leave to re-open his evidence on a prior adjournment application principally on the basis of delay. Pepper J remarked in Ross (No 12) at [3] that the previous judgments in these proceedings showed that Mr Ross had engaged in "a clear pattern of delay and obfuscation". Her Honour made a similar observation in Ross (No 14) at [37] specifically in relation to the hearing of 27-29 May 2013 extracted above in par 27. The orders made in Ross (No 14) were "openly defied" leading to contempt proceedings being filed against him by the Council according to Biscoe J in Ross (No 15) at [12].
3. In relation to the hearing of 27-29 May 2013 the substantive hearing did not commence until 2pm on the third day due to time taken to deal with numerous interlocutory applications made by Mr Ross. Mr Ross chose to absent himself from the courtroom for the final substantive argument. His submission that he needed to do so on medical grounds was not accepted. Mr Ross did not comply with the timetable imposed for the filing of submissions in relation to these costs proceedings (TS 9/9/16 before Pepper J at 4 ln 28).
4. The Court of Appeal observed in Ross v Lane Cove Council [2014] NSWCA 50 at [84] that Mr Ross's conduct in this Court appeared to constitute deliberate and sustained breaches of the obligation to comply with court orders to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Mr Ross also failed to comply with the Court of Appeal's orders until shortly before the appeal was listed for hearing, at [83].
5. Mr Ross also failed to attend or organise representation on numerous occasions which further prolonged the proceedings in my view. For example, he did not appear on 6 July 2012 (Ross (No 1)), 24 July 2013 (Ross (No 3)) or 20 March 2013 (directions hearing when the Class 4 Ross proceedings were set down for hearing in May 2013). This unreasonable behaviour is another reason why an otherwise order should be made under r 42.19.
6. A final observation that should be made is that Mr Ross represented himself or acted as agent for Ms Chami in the parts of the Class 4 Ross proceedings I am considering. While some allowance may have been afforded him in terms of lack of familiarity with court processes and lack of knowledge of how to most efficiently and relevantly place matters before the Court, the history of the various matters shows that Mr Ross behaved in a manner which caused proceedings to be far longer and more complicated than they needed to be. Indeed the conduct of Mr Ross during the Class 4 proceedings and the Second Class 1 Chami building certificate appeal suggests that he became familiar over time with court processes, was well able to understand what was occurring and to present his and Ms Chami's case where he acted as her agent. There is no reason to ameliorate any costs order because Mr Ross was not legally represented for those parts of the Class 4 proceedings being considered by the Court. The same observation applies to Mr Ross when acting as Ms Chami's agent.

Claim for legal costs or disbursements by Mr Ross not available

1. Mr Ross is claiming legal costs on an indemnity basis having been allowed to make an oral application to that effect during the first part of this costs hearing on 7-9 September 2016. In all the judgments in relation to which costs are outstanding Mr Ross represented himself. He is not entitled to a costs order for his personal time. The High Court in Cachia v Hanes (1994) 179 CLR 403 makes clear that the costs for which rules of court provide (in this case s 98 of the Civil Procedure Act 2005 (NSW) (CP Act) and r 42.19 of the UCPR are confined to money paid or liabilities incurred for professional legal services. They do not include compensation for time spent by a litigant in person who is not a lawyer in preparing and conducting his or her case, Cachia v Hanes at 409, 410, 414. A litigant in person can be reimbursed for certain types of out of pocket expenses incurred in and for the purposes of litigating the proceedings, Cachia v The Hills Shire Council [2010] NSWLEC 136 at [30]. The evidentiary or legal basis on which Mr Ross is entitled to legal costs has not been demonstrated by him. Mr Ross could theoretically obtain an order for costs for his disbursements but given my reasoning above no basis for doing this is established by him.

Conclusion in Class 4 Ross proceedings

1. In conclusion for the numerous reasons provided above the Court exercises its discretion to award costs in the Council's favour for the balance of the Class 4 Ross proceedings where cost orders have not already been made. To the extent costs orders have already been made the Court will make the order sought in prayer 4 of the notice of motion.

Lane Cove Council v Chami 16/160320

1. Turning to the Class 4 Chami proceedings, similar issues arise in relation to the Council's notice of motion dated 3 May 2016. The notice of motion seeks: 1. The Applicant is granted leave to discontinue these proceedings on the terms set out hereunder. 2. The Respondent pay the Applicant's costs of the proceedings. 3. The Respondent pay the Applicant's costs of this motion. 4. The order for costs made by Sheahan J in Lane Cover Council v Chami (No 2) dated 10 February 2014 is payable from the date hereof.
2. The chronology of these proceedings is set out above at par 13. The Council commenced Class 4 proceedings against Ms Chami based on their concern that Mr Ross could be prevented from complying with the Court's orders in Ross (No 14) to demolish and reinstate the building as Ms Chami was the new owner of the property, see Chami (No 3) at [1].
3. Five separate interlocutory judgments have been made in the Class 4 Chami matter. The Council was granted leave to serve on short notice a summons commencing Class 4 proceedings against Ms Chami and an application for an interlocutory injunction restraining building work on Ms Chami's property on 31 January 2014, Lane Cove Council v Chami at [7]. Craig J also made orders for substituted service and listed the matter before the duty judge on 4 February 2014 for the purpose of considering the Council's application. An injunction restraining works on the property was granted and costs of the Council's motion were awarded against Ms Chami in Chami (No 2).
4. In Chami (No 3) at [27] the Court ordered that Ms Chami be restrained from residing at the property until an occupation certificate was issued.
5. The Council filed a notice of motion on 30 June 2014 seeking to restrain Ms Chami and her agents from preventing access to the property and that Ms Chami provide access for the purposes of council inspections. Orders for substituted service of the motion were granted in Chami (No 4). The interlocutory orders sought in the Council's motion were granted on 7 July 2014 in Chami (No 5) at [7].
6. Final orders were never made in the Class 4 Chami matter. The Court adjourned proceedings on 21 July 2014 until the determination of the Second Class 1 Chami building certificate appeal. This was ultimately resolved in Chami v Lane Cove Council (No 4).
7. A costs order was made in the Council's favour in Chami (No 2). The Council is claiming its costs of the balance of the Class 1 Chami proceedings including in relation to Chami (Nos 1, 3, 4, 5).

Submissions

1. The Council submits that firstly, by pursuing the building certificate, Ms Chami effectively surrendered in the Class 4 proceedings. Without it, orders would have been made in the terms sought by the Council. For all of the reasons set out in the Class 4 Ross proceedings, the same matters are relevant to these proceedings.
2. Secondly, Ms Chami also engaged in unreasonable conduct, especially the significant delay in bringing the matter to a resolution (particularly a merit assessment) relating to her initial application for a building certificate under the name of Ms Edilbi, which was never pursued, and her delay in relation to the prosecution of the second building certificate application made in the name of Ms Chami.
3. Ms Chami through her agent Mr Ross made the same submissions as were made in relation to the Class 4 Ross notice of motion.

Ms Chami liable for Council's costs

1. Similar reasoning to that which the Court applied in the Class 4 Ross proceedings above at par 76 applies to the Class 4 Chami matter in that the same unlawful building work was the subject of this dispute. The proceedings were commenced later than the Class 4 Ross matter and had not progressed as far when stood over to await the outcome of the second building certificate appeal. Ms Chami through her agent Mr Ross has made the same submissions in the Class 4 Chami matter. She has not differentiated her argumentation from that of Mr Ross in the Class 4 Ross proceedings. Therefore, while mindful of the less advanced progress of these proceedings compared to the Class 4 Ross proceedings, the reasons articulated earlier in this judgment apply to both matters. For completeness in this section the key findings made in relation to the Class 4 Chami proceedings are restated.
2. The Council would reasonably expect a costs order in its favour, given no disentitling conduct and no relevant supervening event. The adjournment of the Class 4 Chami proceedings to enable the second building certificate application to be considered in Class 1 proceedings does not undermine an application for costs in the Class 4 Chami proceedings.
3. In the period between the discontinuance of the first building certificate appeal in July 2013 and the lodgement of a second application on 24 February 2014 with the Council it was open to the Council to conclude that the matter was not likely to be resolved by a Class 1 merit assessment. It was reasonable to commence civil enforcement proceedings against the new owner of the property Ms Chami on 31 January 2014.
4. The surrender by Mr Ross through the s 96 modification process and subsequent first building certificate application was not retracted by Ms Chami. At no stage did Ms Chami in her Class 4 proceedings deny that the building works were illegal. Nor did she make submissions on why demolition orders should not be made. She adopted the same position as Mr Ross, being that a merit assessment ought to precede Class 4 proceedings.
5. The resolution of the Second Class 1 Chami building certificate appeal in Ms Chami's favour is not a supervening event which suggests no costs order ought to be made in the Council's favour in either proceedings. It is more correctly characterised as a surrender given the admission of illegal building work by Mr Ross which was not retreated from by Ms Chami.

Conclusion in Class 4 Chami proceedings

1. The Council's costs of the Class 4 Chami proceedings should be paid by Ms Chami.

Costs of the Council's notices of motion

1. The argument on the Council's two notices of motion has been lengthy taking 3.5 days of hearing time. In Class 4 proceedings the usual rule is that costs follow the event, as provided for in s 98 of the CP Act and r 42.1 of the UCPR. As the Council has been successful in its notices of motion in obtaining costs orders in its favour it should have the costs of the two motions paid by Mr Ross in matter no 16/160307 and Ms Chami in matter no 16/160309.

Lane Cove Council v Ross 16/160309

1. In Lane Cove Council v Ross 16/160309 the Court makes the following orders in relation to the Council's notice of motion filed on 3 May 2016: 1. The Applicant is granted leave to discontinue these proceedings on the terms set out hereunder. 2. The First Respondent pay the Applicant's costs of the proceedings. 3. The First Respondent pay the Applicant's costs of this motion. 4. The orders for costs made in Lane Cove Council v Ross (No 5), (No 6), (No 11) and (No 12) dated 20 February 2013 and 29 May 2013 respectively and by Biscoe J in Lane Cove Council v Ross (No 15) dated 29 November 2013 are payable from the date hereof. 5. All exhibits for these proceedings be returned.

Lane Cove Council v Chami 16/160320

1. In Lane Cove Council v Chami 16/160320 the Court makes the following orders in relation to the Council's notice of motion filed on 3 May 2016: 1. The Applicant is granted leave to discontinue these proceedings on the terms set out hereunder. 2. The Respondent pay the Applicant's costs of the proceedings. 3. The Respondent pay the Applicant's costs of this motion. 4. The order for costs made in Lane Cove Council v Chami (No 2) dated 10 February 2014 is payable from the date hereof. 5. All exhibits for these proceedings be returned.

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: 17 March 2017