North Sydney Council v Bewley

Judgment 1North Sydney Council brought civil enforcement proceedings seeking a declaration that Mrs Bewley, the owner and occupier of property at 38 Shellcove Road, Kurraba Point, has failed to comply with an order under s 124 of the Local Government Act 1993 ('the Act') requiring the removal of a Ginkgo tree and demolition of a brick retaining wall in the front yard of her property, in contravention of s 628(2) of the Act, and an order that Mrs Bewley comply with the s 124 order by taking the action specified in the order. 2The Council today sought leave to discontinue the proceedings under Pt 12 r 12.1 of the Uniform Civil Procedure Rules 2005 ('the UCPR'). Leave of the Court is required because Mrs Bewley did not consent to the Council discontinuing its proceedings. However, Mrs Bewley did not oppose the Court granting leave to the Council to discontinue the proceedings, although she sought an order that the Council pay her costs of the proceedings, in conformity with r 42.19 of the UCPR. I granted leave to the Council to discontinue the proceedings and the Council thereupon filed a notice of discontinuance. The only issue remaining in the proceedings was costs. 3The Council sought an order that Mrs Bewley pay its costs of the proceedings, or in the alternative, from 13 May 2014 when the Council made an offer to Mrs Bewley that it would discontinue the proceedings on the basis that each party pay their own costs, which offer was not accepted by Mrs Bewley. Mrs Bewley sought an order that the Council pay her costs of the proceedings. 4The proceedings are in class 4 of the Court's jurisdiction and r 42.19 applies to such proceedings. Rule 42.19(2) provides for a default order that a discontinuing plaintiff is to pay the defendant's costs, but gives the Court power to order otherwise. The Court can only order otherwise if it makes a discretionary decision to depart from the default costs order provided for in r 42.19(2). This places an onus on the discontinuing plaintiff to make an application for an alternative costs order and to establish the positive ground or good reason for departing from the ordinary course. The discontinuing plaintiff must establish the factual basis for the alternative costs order and bears the burden of persuading the Court that an alternative costs order is appropriate: Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424 at [21]. 5In support of an order that Mrs Bewley pay the Council's costs, the Council relied on what it alleged was the unreasonableness of Mrs Bewley's conduct prior to the commencement of the proceedings, and in her conduct of the proceedings. 6In relation to the conduct prior to the commencement of the proceedings, the Council alleged that Mrs Bewley's conduct precipitated both the issuing of the s 124 order as well as the bringing of the proceedings to enforce that order. The Council alleged that Mrs Bewley could have avoided both the giving of the s 124 order and the commencement of the proceedings if she had earlier provided the engineer's report that she later provided to the Council in late February 2014. That engineer's report identified that the cause of the displacement of the front boundary retaining wall was hydrostatic pressure in the retained earth behind the wall and not the Ginkgo tree, and that installation of weepholes in the base of the wall to improve drainage would relieve the hydrostatic pressure. 7The Council submitted that if that engineer's report had been provided to the Council in response to its earlier order requiring the submission of an engineer's report, the Council would not have issued the s 124 order requiring the demolition of the retaining wall and the removal of the Ginkgo tree or brought the proceedings to enforce that order. This argument of the Council requires a narration of the key events leading up to the litigation. 8On 8 February 2013, a Council Compliance Officer, Mr Clint Mills, inspected the front boundary retaining wall and noticed a "significant movement" towards the Council's footpath. He opined that "the most likely result of the movement is due to a large tree that is located directly behind the retaining wall." He considered that "at the time of the inspection the retaining wall appeared to be stable", however he recommended that the Council issue an Order No 21 under the Act seeking that an engineer formally inspect the front retaining wall. 9On 11 February 2013, the Council's Tree Preservation Officer, Melanie Hamilton, inspected the Ginkgo tree and advised that it was "in a healthy and stable condition displaying no indication of imminent collapse". 10On 12 February 2013, the Council issued an emergency Order No 21 pursuant to s 124 of the Act. The emergency order required Mrs Bewley to: