Penrith City Council v Dincel Construction System Pty Limited

Evidence

1. In support of the relief sought in the amended notice of motion, Dincel read three affidavits of Penelope Louise Murray affirmed 29 January, 9 and 22 February 2021 and the affidavit of Raj Prasad affirmed 9 February 2021. Council read the affidavit of Jodie Wauchope sworn 19 February 2021.
2. Ms Murray, solicitor for Dincel and Gaonor, in her affidavit affirmed 29 January 2021, to which no objection was taken, deposed that the concerns of Dincel and Gaonor in seeking a variation of Order (8) relate to the approach to any future development consent in relation to the removal of the unlawful works, fill and restoration of the Premises and 931 Mamre Road. Ms Murray stated that "Orders 5, 6 and 7 [in Dincel (No 4)] do not require cessation of the use or activity where there is a grant of development consent by a consent authority to make lawful the use of the Premises and/or the Olathree Land"; Order (8(a)), in its terms, requires the removal of items associated with the use of the Premises and the Olathree Land "for purposes which are unlawful"; and Orders (8(b)) and (8(c)) require the removal of "unlawful works" and "unlawful fill".
3. Ms Murray stated that Order (8(a)) "… does not require [Dincel] to give effect to the order if the use is in accordance with any development consent granted by 15 November 2021" whereas Orders (8(b)) and (8(c)) require Dincel to "remove the unlawful works, restore the Premises (and 931 Mamre Road) to the ground level that existed prior to the unlawful works by 15 November 2021 and dispose of the unlawful fill regardless of whether a consent authority has granted development consent for the use of the Premises". Ms Murray stated that in circumstances where Orders (8(b)) and (8(c)) do not contemplate the grant of development consent by a consent authority, this "conflicts" with Orders (5), (6), (7) and (8(a)).
4. Ms Murray also deposed to the requirements of Order (9) (ordering that "the respondents" are to pay Council's costs of the substantive proceedings) with reference to statements made at [3] and [99] of Dincel (No 4).
5. In her affidavit of 9 February 2021, Ms Murray deposed that a Notice of Appeal was filed in the Court of Appeal on 9 February 2021. Ms Murray also referred to the evidence of Mark Tooker, Peter Warwick and Matthew Kritzler previously before the Court in the substantive proceedings, relating to the works, time and costs associated with compliance with the orders sought by Council requiring the removal of the unlawful items, works, fill and the rectification of unlawful works. Ms Murray notes that the cost estimates in the evidence previously before the Court in the substantive proceedings did not include the costs related to 931 Mamre Road or the costs to remove stored Dincel product on the Premises.
6. Ms Murray concluded that the effect of the previous evidence she refers to is that the works required to be undertaken by Dincel to comply with Order (8) of Dincel (No 4) by the date of 15 November 2021 would need to commence by 12 April 2021 (or 7 June 2021 at the latest) - noting the limitations of this evidence outlined above. Ms Murray noted that this may mean the works would need to commence before the outcome of the Appeal Proceedings was known, which she says may "… defeat the principal purpose" of the Appeal Proceedings as they include a challenge to the terms of Orders (8(b)) and (8(c)).
7. In her affidavit of 22 February 2021, Ms Murray, responding to the affidavit of Ms Wauchope, exhibits correspondence between Council and Gaonor in relation to the application for development consent submitted by Gaonor in relation to the Premises and correspondence between Council and Gaonor's town planner in relation to the provision of amended documentation to Council on behalf of Gaonor. Ms Murray records that Class 1 appeal proceedings ('Class 1 Proceedings') against Council's deemed refusal of the application for development consent were commenced in this Court on 7 January 2021. Ms Murray also exhibits material relating to a draft Mamre Road Development Control Plan.
8. In his affidavit affirmed 9 February 2021, Mr Prasad, Dincel's Chief Financial Officer, who gave evidence in the substantive proceedings, provides an "update" on the financial position of Dincel by reference to Dincel's financial statements for the financial year ending 30 June 2020 (including the Profit and Loss Report for June 2020) as well as the Profit and Loss Reports for January 2020 and December 2020. Council took objection to pars (32) to (40) of Mr Prasad's affidavit on the basis of relevance. I find that these paragraphs should be allowed, noting that it will be a matter of weight.
9. Mr Prasad deposed that due to a decline in levels of new high-rise residential construction, which he says is likely to continue for the long term, Dincel's revenue and cash reserves have been "down" such that Dincel is making net losses each month. He also deposed that orders for Dincel product have fallen, which is reflected a reduction in revenue of approximately 33% ($19,000,000) when comparing the year to date revenue from sales from June 2018 to June 2019, and June 2019 to June 2020. He deposed that when the Federal Government's JobKeeper Payment program (which has assisted Dincel to retain employees), ends on 31 March 2021, the financial position of Dincel will deteriorate unless there is a rapid change in demand for new high-rise residential construction.
10. In these circumstances, Mr Prasad deposed as to the financial consequences of Order (5) in Dincel (No 4), which requires the cessation of the unlawful use of the Premises for storage, and the removal of Dincel product from the Premises by 15 May 2021. Despite the fact that Order (5) is not the subject of the Appeal Proceedings or the motion considered in these proceedings (as a result of an amendment to the notice of motion made after the preparation of Mr Prasad's affidavit), he opined as to the financial consequences of Dincel having to comply with Order (5) (including the need to find, rent and relocate to alternative premises or reconfigure existing premises, to avoid destroying Dincel product currently at the Premises).
11. Mr Prasad also considers the financial consequences of complying with Order (8) in Dincel (No 4) and refers to earlier evidence considered in the substantive proceedings as to the costs of the removal of the unlawful items, works, fill and the rectification of unlawful works. He says there is a "serious risk" of Dincel becoming insolvent in order to comply with Order (8), including as a result of the costs which would have already been incurred as a result of compliance with Order (5).
12. Ms Wauchope, solicitor for Council, deposed to the lodgement by Gaonor of the application for development consent (as referred to in Dincel (No 4) at [36] and [147]). She deposed that the right to appeal the deemed refusal of the application for development consent by Council to this Court (the Class 1 Proceedings) arose on 30 September 2020. However, Gaonor (having submitted additional plans to Council on 27 October 2020), did not commence the Class 1 Proceedings in this Court until 7 January 2021.
13. Ms Wauchope also deposed to her belief about the status of certain pre-requisites for development consent to be granted, including: first, that the draft Mamre Road Precinct Development Contributions Plan has not been made; second, that satisfactory arrangements have not been made in relation to an obligation pursuant to cl 29 of the State Environmental Planning Policy (Western Sydney Employment Area) 2009 ('WSEA SEPP') in relation to the provision of regional transport infrastructure and services (referring to correspondence from the Secretary, Department Planning, Industry and Environment to Council); and third, the draft Development Control Plan for the Mamre Road Precinct has not been made.

Submissions

1. As noted above, the parties' submissions address: first, the application to amend the orders in Dincel (No 4) regarding the removal of the unlawful works, fill and restoration of the Premises and 931 Mamre Road; second, the stay of certain orders in Dincel (No 4) pending the determination of the Appeal Proceedings (including through amendment to those orders); and third, the application for an alternative costs order - that costs not be awarded against Gaonor.

Dincel and Gaonor

1. In summary, the applicants submit: first, that Order (8) should be varied pursuant to rr 36.16(3A) and 36.17 (respectively) of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'); second, that Orders (8(b)) and (8(c)) should be stayed pending the determination of the Appeal Proceedings which are to be heard on 13 May 2021; and third, that the costs order made in Dincel (No 4) should be revised to lie against Dincel only (and not Dincel and Gaonor).

Amendment

1. Reflecting matters raised in Ms Murray's evidence, the applicants submit that on their understanding (and their construction) where there is a development consent granted by a consent authority to make "lawful" the use of, or activity at, the Premises and/or the Olathree Land, that Orders (5), (6) and (7) do not (or would not) require cessation of that use or activity. Similarly, the applicants submit that in requiring Dincel to remove all items associated with the use of the Premises and the Olathree Land for "unlawful" purposes, Dincel is not required to give effect to Order (8(a)) if the items are associated with a use that is in accordance with a development consent granted by 15 November 2021. The applicants submit that in contrast, Orders (8(b)) and (8(c)) require Dincel to remove the unlawful works, restore the Premises and 931 Mamre Road to the ground level that existed prior to the unlawful works by 15 November 2021, and dispose of the unlawful fill, regardless of whether a consent authority has in the meantime granted development consent for the use of the Premises.
2. Simply stated, the applicants' submission is that because Orders (8(b)) and (8(c)) do not contemplate the grant of development consent by a consent authority, they are in conflict with Orders (5), (6), (7) and (8(a)). The applicants submit that in order to address what they characterise as an "obvious incongruity", Order (8) should be amended so that it includes the terms "[u]nless a development consent is granted for the use of the Premises for storage or a warehouse or distribution centre prior to that date".
3. The applicants suggest that there would otherwise be an inconsistency between Order (5), which would permit Dincel and Gaonor to use the Premises for the purposes of "storage premises" or "warehouse premises" or "warehouse or distribution centre" in the event that development consent is granted and Order (8) (being Orders (8(b)) and (8(c)) specifically), which requires Dincel to "reinstate" the Premises regardless of whether development consent is granted or not. Dincel submits that the application for development consent now the subject of the Class 1 Appeal (to be heard) would be "frustrated" if Order (8) is not amended, because Gaonor's development application is "predicated on the hardstand and fill remaining in place".
4. The applicants submit that the words "which are unlawful or prohibited" should also be deleted from (8(a)) to be consistent with the amendments the applicants propose to the chapeau of Order (8) which would apply to Orders (8(a)), (8(b)) and (8(c)).

Stay

1. The applicants make an application for a stay of Orders (8(b)) and (8(c)) pending the determination of the Appeal Proceedings, and an ancillary amendment of Order (8) so that Dincel is not required to comply with Orders (8(b)) and (8(c)) until 10 months after the determination of the Appeal Proceedings. The applicants submit that a stay is required in order to preserve the subject matter of the appeal.
2. The applicants submit, by reference to the evidence of Mr Tooker in the substantive proceedings and the scope of this evidence (noted by Ms Murray in her affidavit of 9 February 2021), that Dincel would need to commence restoration works before the Appeal Proceedings are determined (in circumstances where the Appeal Proceedings are being heard on 13 May 2021 but there is no certainty as to when they will be determined) in order to comply with Order (8) by 15 November 2021. This would prejudice Dincel because it would require it to carry out substantial works at the Premises and 931 Mamre Road and incur a significant portion of the costs required to comply with Order (8), which would be unnecessary if the appeal was successful. The applicants submit that this would "substantially defeat" the purpose of Appeal Proceedings, and the appeal would be rendered nugatory.
3. The applicants submit that the principles in relation to the grant of a stay (and specifically the grant of a stay under s 67 of the Civil Procedure Act 2005 (NSW) and s 22 and arguably s 23 of the Land and Environment Court Act 1979 (NSW)) support the granting of a stay, and their suggested variation of Order (8) so that it includes the terms "or, in relation to 8(b) and (c), 10 months after the determination of an appeal by the Court of Appeal, whichever comes later".
4. In relation to the balance of convenience, the applicants point to the evidence of Mr Prasad (noted above), that Dincel would be exposed to "a serious risk of becoming insolvent" if it were required to comply with Order (8), where this position is in stark contrast to that of Council which brings no evidence of any inconvenience if a stay were granted. The applicants suggest that there would be no additional environmental harm caused by the grant of a stay.
5. The applicants also submit that, contrary to Council's submission, Gaonor has progressed its application for development consent expeditiously. They note that although the Class 1 Appeal was not commenced as early as it may have been, Gaonor was involved in providing additional material sought by Council and considered this a more efficient way of obtaining development consent.
6. Finally, the applicants submit that the Court would find that the appeal is reasonably arguable, proffering a number of reasons why this is the case.

Costs

1. The applicants seek to vary the Court's costs order and submit that the costs order in Order (9) in relation to "the respondents" should be confined to "Dincel" so there is no order for costs against Gaonor.
2. The applicants accept the general rule that costs follow the event.
3. Although accepting that Gaonor was a necessary party to the substantive proceedings because it was the landowner, the applicants submit that Council "wrongly sought relief" against Gaonor. In this respect, the applicants submit that Council was not required to seek relief against Gaonor, and it was unclear what basis Council had for seeking relief - noting that "Council did not lead any evidence which suggested that Gaonor, as opposed to Dincel, was responsible for the impugned conduct".
4. The applicants point to the fact that in its pleading, Council contended that Gaonor breached ss 4.2 and 4.3 of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') through its alleged unauthorised use and development of the Premises and the Olathree Land. Council also sought a declaration that Gaonor was in breach of the EPA Act by failing to comply with an order issued under Div 9.3 of the EPA Act previously issued by Council. In the circumstances, Council did not establish the factual or legal basis for any of the claims against Gaonor.
5. Although Council seeks to rely upon correspondence from its solicitors in July 2019, the applicants contend that any such reliance is misplaced because Council had already sought relief against Gaonor at this time, and there are procedures in the UCPR that would have enabled Council to identify the proper respondents in the proceedings (referring to Pts 5, 17 and 22 of the UCPR) and Council chose not to take advantage of those procedures.
6. Finally, the applicants submit that Council did not abandon its claims against Gaonor until closing submissions, after Gaonor had already been put to the expense of defending those claims.

Council

1. In summary, Council opposes the application for Order (8) to be amended pursuant to rr 36.16(3A) and 36.17 UCPR as there is no incongruity (and therefore no inadvertent error) in the relevant orders made in Dincel (No 4). Council also opposes the application for Orders (8(b)) and (8(c)) to be stayed pending the determination of the Appeal Proceedings (and for Order (8) to be amended to effectively stay the removal of the unlawful works, fill and restoration of the Premises and 931 Mamre Road until 10 months after the Appeal Proceedings). Finally, Council submits that the costs order made in Dincel (No 4) should remain against both Dincel and Gaonor.

Amendment

1. In relation to the variation sought to Order (8), Council submits that first, the "wording amendments" sought by the applicants do not fall within the narrow scope of clerical error contemplated by r 36.17 of the UCPR; and second, that the power under r 36.16 to set aside or vary a judgment has a limited purpose, being to permit "readily identifiable, readily rectifiable, inadvertent errors" to be corrected (Majak v Rose (No 5) [2017] NSWCA 238 ('Majak v Rose (No 5)') at [12]) and should not be used by "disgruntled litigants" to obtain a more favourable outcome.
2. Council submits that there is no incongruity (and therefore no inadvertent error for the purposes of r 36.16, or clerical mistake or error for the purposes of the "slip rule") in the relevant orders made in Dincel (No 4). Council submits that Orders (5), (6) and (7) operate as follows: first, to prevent unlawful use of the Premises (Order (5)); second, to prevent unlawful use of the Olathree Land (Order (6)); and third, to place specific restrictions on truck types (Order (7)). Order (8) then contemplates "the removal of physical items and works" (particularly the importation of fill and construction of earthworks), which were "separately" held to be unlawful and a contravention of the EPA Act. This is described by Council as a "careful timetable" that has been designed by the Court.
3. Responding to the applicant's submissions in respect of the "conflict" raised by the fact that (8(b)) and (8(c)) do not contemplate the grant of development consent by a consent authority, it is Council's submission that a development consent could be granted for "storage use" of the Premises even in circumstances where the items and physical works had been removed pursuant to Order (8) (noting that Council denies that there is a power to grant such a development consent under the relevant instruments, as discussed below).
4. Council further submits that amendments sought by the applicants are based on the "hotly contested" assumption that development consent can, as a matter of law, be granted for the use of the unauthorised works and items so that, as a matter of fact, the unlawful works are permitted to remain, and that this assumption is a significant issue in the Class 1 Proceedings.
5. Council further contends that, in any event, the Court in the Class 1 Proceedings lacks power to grant development consent in relation to the use of the unauthorised works because of four matters (dealt with in Ms Wauchope's affidavit) which militate against Gaonor's success in the Class 1 Proceedings: first, no draft Mamre Road Precinct Development Contributions Plan has been made; second, the WSEA SEPP prohibits the grant of development consent; third, that "satisfactory arrangements" have not been made (by Gaonor) to contribute to the provision of regional transport infrastructure and services; and fourth, a draft Development Control Plan has not been made.

Stay

1. In relation to the applicants' request for a stay of Orders (8(b)) and (8(c)) pending the determination of the Appeal Proceedings, Council submits that there is no reason for a stay given that the Court of Appeal will hear the Appeal Proceedings on 13 May 2021, and the orders have already been suspended until 15 November 2021.
2. Council submits that the balance of convenience decisively weighs against the grant of a stay. Council notes that where no appeal has been made by the applicants against the orders requiring the "storage" use to cease (as per Order (5)), there can be no justification for staying the orders requiring the removal of the unlawful works and fill after the use has ceased. Council makes the related point that there has been an apparent reduction in the volume of Dincel product stored at the Premises, which should also facilitate the removal of Dincel product from the Premises (and the time and presumably cost that this involves), further militating against the need for a stay.
3. Council submits that the applicants' proposed ancillary variation to Orders (8(b)) and (8(c)) would lead to an "uncertain outcome" because if development consent is not granted prior to 15 November 2021, the amended order sought by the applicants would operate to permit the "unlawful development" to continue until 10 months after judgment in the Appeal Proceedings. Council submits that this would effectively delay the operation of the orders for an unknown period of time.
4. Council submits that the proposed variation to Orders (8(b)) and (8(c)) would also lead to an unfair outcome, for the following reasons: first, three years have passed since the unauthorised works commenced; second, the suspension of orders favours Dincel because it effectively allows the unauthorised use to continue providing valuable business and operational continuity for Dincel; third, the interests of Dincel (and Gaonor) need to be balanced against the enforcement of a public interest which exists in the orderly development and use of the environment (in circumstances where there was no mere technical, inadvertent breach of the planning laws); fourth, it is possible that there will be a determination in the Class 1 Proceedings by late June or early July - well before 15 November 2020, at which time, Dincel and Gaonor will gain certainty over the planning future of the Premises (meaning there is no justification for permitting the physical works and items to remain for the longer period of 10 months after the Appeal Proceedings are determined); and fifth, Gaonor's delays in progressing the Class 1 Proceedings supports Council's contention that the applicants are seeking to suspend the orders for as long as possible.
5. Council also submits that the strength of the appeal would militate against the grant of a stay and makes a number of comments in relation to elements of the Appeal Proceedings.
6. Finally, Council submits that the variation of Order (8) to extend the time for compliance with Orders (8(b)) and (8(c)) has the effect of re-agitating a central issue in the substantive proceedings, being whether the Court should exercise its discretion to stay or suspend the operation of the orders to facilitate the location of alternative premises. Council notes that the Class 1 Proceedings were "squarely" before the Court when making the orders and the timetable for cessation of use and the removal of the unlawful works, fill and restoration of the Premises and 931 Mamre Road.

Costs

1. Council submits that Order (9) should not be amended so that the obligation to pay Council's costs is limited to Dincel (and not Gaonor). Council points to intercourse between the parties prior to the commencement of the substantive proceedings (in particular, correspondence of 15 April 2019 where both Dincel and Gaonor were informed that Council was contemplating taking proceedings against each entity) and after the substantive proceedings had been commenced (when Council wrote raising the issue as to whether the proper respondent should be Dincel rather than Gaonor). Council submits that the conduct of Dincel and Gaonor in failing to engage with Council's correspondence on the issue and their failure to indicate that relief should not be sought against Gaonor, militates against an alternative cost order being made.
2. In these circumstances, it is Council's position that costs should follow the event.

Amendment

1. I do not consider that Order (8) of Dincel (No 4) regarding the removal of the unlawful works, fill and restoration of the Premises and 931 Mamre Road should be, or could be, varied pursuant to r 36.16(3A) and/or r 36.17 of the UCPR. I deal with the application to amend Order (8) to provide a stay discretely below.
2. Variation of a judgment or order can occur under the "slip rule", now found in r 36.17 of the UCPR which provides: Correction of judgment or order ("slip rule") If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.
3. I accept that the operation of the slip rule extends to correcting a mistake or error in orders to carry into effect the actual intention of the judge; and to make sure orders do not have a consequence which the judge clearly intended to avoid adjudicating on: Newmont Yandal Operations Pty Ltd v The J Aron Corporation and The Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195 at [116].
4. The Court also has power to set aside or vary a judgment or order pursuant to r 36.16 of the UCPR which relevantly provides: Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. … (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. …. (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.
5. There is no dispute that the notice of motion (subsequently amended) was filed by the applicants within the time prescribed by subr (3A) and, accordingly, subr (1) is applicable.
6. As a general comment, a court's jurisdiction to set aside orders should be exercised sparingly and with caution, having due regard to the importance of the finality of litigation: Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672; [1982] HCA 41 at 684; State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29; [1982] HCA 51 at 38.
7. In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 ('Autodesk v Dyason (No 2)') at 303, Mason CJ (although in dissent) said: "However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases."
8. Rule 36.16 of the UCPR is subject to these same limitations: Mendonca v Tonna (No 3) [2020] NSWCA 332 at [7]. In Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362 ('Waterhouse') at [17], the Court of Appeal (Basten JA, Sackville AJA and Emmett AJA) considered setting aside or varying orders in the specific context of r 36.16 of the UCPR, and, after quoting the passage in the judgment of Mason CJ in Autodesk v Dyason (No 2) extracted above with approval, said: "To that statement one may add two further notes of caution. First, there is a distinction to be drawn between the court acting upon a misapprehension as to the facts or the relevant law, on the one hand, and, on the other, the court reaching a conclusion which, in the view of the applicant for re-opening, involves a mistake. Secondly, there is a distinction to be drawn between the situation where the court misapprehends the facts, on the one hand, and, on the other, the situation where the court does not refer in its reasons to some matter which, in the belief of the person seeking re-opening, deserved express reference."
9. Waterhouse also emphasises that mere disagreement or dissatisfaction with the reasons and orders of a court is not sufficient to justify the reopening of a decision. In this respect, "the willingness of the Court to reopen its decision is constrained": Clark v Robards (No 3) [2016] NSWCA 354 at [11].
10. Rule 36.16 of the UCPR is subject to the "overriding purpose" of facilitating the "just, quick and cheap resolution of the real issues" between the parties to litigation: s 56 of the Civil Procedure Act 2005 (NSW)). As the Court of Appeal noted in Majak v Rose (No 5) at [12]: "…It does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them. Nor does it make of a court some sort of magic pudding from which unsuccessful litigants may take slice after slice, ever hopeful that the next will be more palatable than the last. The rule has a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal…"
11. Taking the above principles into account, the applicants bear the onus of showing that the jurisdiction of the Court to vary Order (8) ought to be exercised in their favour.
12. I do not accept the applicants' position, as detailed in the affidavit of Ms Murray and the applicants' written and oral submissions, that there is an obvious incongruity or conflict between Orders (5), (6), (7) and (8(a)) on the one hand and Orders (8(b)) and (8(c)) on the other, as this is predicated upon a particular interpretation (or construction) of Order (8) and the other orders made, and/or a suggestion that a "correction" should be made to ensure that Order (8) and the other orders do not have a consequence that was not intended by the Court.
13. In Dincel (No 4), I found that Dincel undertook the unlawful works (as defined in Order (1)) at the Premises and development at 931 Mamre Road in breach of the EPA Act (Orders (1) and (4)), and that Dincel's use of the Olathree Land to 2 December 2019 and the continuing use of the Premises was in breach of the EPA Act (Orders (2) and (3)), and therefore at the time of judgment unlawful. I made orders requiring the cessation of the unlawful use and requiring Dincel to remove all items associated with that unlawful use, as well as to remove the unlawful works, fill and restore the Premises and 931 Mamre Road.
14. In this respect, Order (5) provides that Dincel will cease the unlawful use of the Premises from 15 May 2021. This meant to achieve the cessation of the use which I found to be unlawful in my reasons in Dincel (No 4). That is, Dincel must cease using the Premises for "storage premises" or "warehouse or distribution centre" as and from 15 May 2021. This order allows Dincel four months for the orderly cessation of the unlawful use.
15. I do not consider (and did not intend) that the expression "unlawful use" in Order (5) (noting that order is not the subject of the amended notice of motion or argument in Appeal Proceedings), contemplates, or invites, an attempt to regularise Dincel's use which I have found to be unlawful.
16. Following from this, Order (8(a)) is, and was meant to be, clearly stated. Dincel is to remove all items that have been associated with the use of the Premises and the Olathree Land for purposes which I have found unlawful and/or prohibited, where this includes the removal of "all building and construction products and materials, equipment, machinery and vehicles".
17. Order (8(b)) is a separate order that requires the removal of the "unlawful works" which I dealt with in Dincel (No 4) and found to be undertaken without development consent in breach of the EPA Act (and discretely described in Order (1)), and that provides for the restoration of the ground level of the Premises and 931 Mamre Road to the ground level that existed prior to the carrying out of the unlawful works.
18. Order (8(c)) imposes specific obligations in relation to the disposal of the unlawful fill which will be generated from compliance with the other parts of Order (8). In this way, Orders (8(b)) and (8(c)) require the removal of the unlawful works, fill and the restoration of the Premises and 931 Mamre Road.
19. I do not consider that Order (8(a)) does "not require [Dincel] to give effect to the order if the use is in accordance with a development consent granted by 15 November 2021" as suggested in Dincel's submissions (emphasis added). This is, with respect, a misunderstanding of the order.
20. The applicants, in oral submissions, properly accepted that where the framing of the orders discussed above was deliberate - and thus not an "inadvertent error" for the purposes of Majak v Rose (No 5) nor a mistake or error for the purposes of the slip rule - they do not press this element of the motion. Given this, I consider my comments above deal with my refusal to amend Order (8), because, as I have set out, the orders reflect actual and deliberate intention.
21. However, for completeness I have recorded my findings in relation to the applicants' and Council's further submissions, as follows.
22. I consider that the general principles in relation to reopening a decision militate against varying Order (8) as sought by the applicants, as this jurisdiction should be used sparingly and with caution.
23. I accept Council's submission that the "wording amendments" to Order (8) sought by the applicants does not fall within the narrow scope of clerical or other error or omission contemplated by r 36.17 of the UCPR.
24. In relation to rule 36.16 of the UCPR, I consider that the applicants needed to have demonstrated some misapprehension on the part of the Court in the substantive proceedings, and that that misapprehension is not attributable to their conduct in the substantive proceedings. The applicants have not demonstrated a misapprehension on the part of the Court in the substantive proceedings that would justify varying Order (8). As explained above, I consider that the "conflict" or "inadvertent error" identified by the applicants is not made out.
25. I understand that an application for development consent has been made by Gaonor and that, consequent upon Council's deemed refusal, the Class 1 Proceedings have been commenced in this Court. I understand the submissions made by Council, and I accept that there is some concern as follows: first, that the Class 1 Proceedings have not been progressed with due expedition; second, whether development consent can be granted for the use incorporating the unlawful works; and third, that there are significant matters that need to be addressed before any development consent can be given. However, I do not consider that these concerns are determinative in my consideration of the motion as these are primary matters for determination in the Class 1 Proceedings. In this regard I repeat my comments at [60] in Dincel (No 4).

Stay

1. As noted above, I will now consider both the applicants' application for Orders (8(b)) and (8(c)) to be stayed pending the determination of the Appeal Proceedings, and the ancillary application to amend Order (8) so that Dincel is not required to comply with Orders (8(b)) and (8(c)) until 10 months after the determination of the Appeal Proceedings.
2. Section 67 of Civil Procedure Act 2005 (NSW) provides: Stay of proceedings Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.
3. Sections 22 and 23 of the Land and Environment Court Act 1979 (NSW) provide as follows: Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided. Making of orders The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.
4. Council appears to have considered the variation sought by the applicants to Order (8) to extend the time for compliance with Orders (8(b)) and (8(c)) as part of the variation to Order (8) more generally under r 36.16 of the UCPR. In oral submissions, the applicants submitted that the Court's power to grant the variation to Order (8) to extend the time for compliance with Orders (8(b)) and (8(c)) to 10 months after the determination of the Appeal Proceedings is adjunct or incidental to the Court's power to grant a stay, and therefore not reliant on the operation of r 36.16 of the UCPR.
5. To the extent the variation to Order (8) to extend the time for compliance with Orders (8(b)) and (8(c)) is made under r 36.16 of the UCPR, I repeat my comments above. I otherwise consider the variation to Order (8) through the lens of the Court's power to grant a stay.
6. The principles to be applied when exercising the Court's power to grant a stay pending an appeal are well-known: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 ('Alexander v Cambridge') at 694-695; Lawrence v Gunner [2015] NSWCA 322 ('Lawrence v Gunner') at [10]-[12].
7. Accepting that a successful party is prima facie entitled to the fruits of their judgment, a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour, such as by showing there are arguable grounds of appeal, and by showing there is a risk that if money is paid it will be unable to be recovered if the appeal succeeds or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Ltd v Antoniadis [No 2] (1999) 48 NSWLR 381; [1999] NSWCA 104 at [15]; Lawrence v Gunner at [11].
8. In exercising its discretion, the Court will weigh the balance of convenience and the competing interests of the parties. It is for the applicant for a stay to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties: Alexander v Cambridge; Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Najem (No 2) [2009] NSWCA 130 at [5].
9. Adopting the principles noted above, I accept that there is an arguable case in the Court of Appeal. While I accept that there is some risk that costs may be expended in complying with Orders (8(b)) and (8(c)) which will be sunk or lost if success in the Appeal Proceedings is enjoyed by the applicants, I do not accept that unless a stay is granted, the appeal will be rendered nugatory simply because some works have been commenced in accordance with Order (8(b)) and (8(c)) prior to the determination of the Appeal Proceedings.
10. The Court of Appeal has allocated a relatively expeditious hearing date in the Appeal Proceedings (13 May 2021). In circumstances where the orders about which concern has been particularly expressed have already been suspended until 15 November 2021 (a time some six months after the hearing date for the Appeal Proceedings and some 10 months after judgment was given in Dincel (No 4)), I am not satisfied that granting a stay is required to preserve the substance of the appeal. I note that if the Court of Appeal had not allocated a hearing date in the Appeal Proceedings as expeditiously as it has, and there was less time between when the Appeal Proceedings are heard and likely to be determined, and the time for compliance with Orders (8(b)) and (8(c)) is required, I would have been more inclined to grant a stay.
11. Balancing up questions of fairness, the interests of the parties, as well as the importance of the enforcement of a public interest which exists in the orderly development and use of the environment, I consider that the balance of convenience falls against granting a stay.
12. Although the applicants point to the evidence of Mr Prasad as to Dincel being exposed to a "serious risk of becoming insolvent" if it is required to comply with Order (8), and submit that this is in "stark contrast" to the "minimal inconvenience" to Council if a stay (until the determination of the Appeal Proceedings) is imposed, I do not consider that this is compelling. As I have noted, there is already a 10 month suspension of the orders about which there is complaint, the unlawful works have been in place and the unlawful use has continued for some 3 years, and Dincel (and Gaonor) have known of the position adopted by Council both prior to and subsequent to the commencement of the substantive proceedings some 2 years ago. Given this, the situation in which Dincel finds itself is a result of the commercial decisions it has made.
13. Although not determinative in my consideration, I also note the applicants' submissions, while based upon the more recent evidence of Mr Prasad are not dissimilar and, are indeed are redolent of, the position adopted earlier by the applicants in the substantive proceedings. As considered at [24]-[25] of Dincel (No 4), in correspondence of 3 December 2018 to Council, Burak Dincel, referring to the conduct involving unlawful works having been undertaken at the Premises, stated that "without the storage capability our business would have been permanently damaged … this could have resulted in closing of the business" - these comments followed on from where Mr Dincel accepted that works had been performed without "DA approval" and had stated "I had to do what I had to do with the survival of our business". As I noted above, the financial consequences of compliance with the orders of the Court requiring the removal of the unlawful works, fill and restoration of the Premises and 931 Mamre Road are a result of continuing commercial decisions made by Dincel.
14. In addition, I note that there is no appeal from Order (5) in Dincel (No 4) requiring cessation of the unlawful use by 15 May 2021. Again, while I note that Mr Prasad's more recent evidence (some of which was objected to on this ground) outlined the costs likely to be incurred by Dincel (or Gaonor) of the cost consequences with having to comply with Order (5) in having either to find new premises and/or reconfigure Dincel's existing operations at the Erskine Park Plant, in addition to costs likely to be incurred by Dincel to comply with Order (8), this situation to a large extent is the result of commercial decisions already made (or to be made) by Dincel.
15. In relation to the amendment of Order (8) to effectively provide a stay on the operation of the order until 10 months after the Appeal Proceedings specifically, I accept Council's submission that the proposed variation to Orders (8(b)) and (8(c)) would lead to an uncertain outcome, as the date which is 10 months after judgment in the Appeal Proceedings cannot be determined with certainty.
16. I also accept Council's submission that the applicants' proposed variation would lead to an unfair outcome. I consider that the suspension of relief in Dincel (No 4) (for the period of four and 10 months) provided an appropriate balancing of the interests of the parties and the public interest. In reaching that view in Dincel (No 4), I took into account Dincel's deliberate decisions and conduct, the more than three years that have passed since the unauthorised works commenced, and the "business and operational continuity" benefits that Dincel has enjoyed. In these circumstances, I accept that as submitted by Council, any extension to the suspension that I have already determined would not be fair.

Costs

1. As noted above, Order (9) provides that "the respondents" are to pay Council's costs unless an application is made for an alternative costs order within 21 days. The motion presently before the Court was made within that time and seeks an alternative costs order that is directed to Dincel only.
2. As the applicants accept, the general rule is that costs follow the event: r 42.1 UCPR. The applicants also accept that Gaonor was a "necessary party" to the substantive proceedings as the owner of the Premises.
3. Council's correspondence of 15 April 2019 was specifically directed to Mr Dincel as director of both Dincel and Gaonor, and it notified him (and both Dincel and Gaonor) of Council's concerns regarding the specifically identified conduct and work being undertaken at the Premises; that Council was contemplating proceedings against each entity - seeking for Dincel to cease unauthorised use of the Premises and for Gaonor to comply with the development control orders issued; and that Mr Dincel had been informed "many times" of Council's concerns. Although Council did not ultimately pursue the relief in its pleaded claims against Gaonor (Dincel having accepted that its conduct was a breach of s 4.2 of the EPA Act), it was clear that Council's proposed orders in relation to Gaonor were sought in the alternative to orders against Dincel and concerned the same conduct at the Premises. The orders sought against Gaonor included declarations and injunctive relief in the same terms as the declarations and injunctive relief sought against Dincel, as well as a purported failure to comply with a development control order.
4. Although not determinative in my consideration, I also take into account Council's submission that the evidence now before the Court is that Council's solicitors, in correspondence of 16 July 2019, specifically asked the applicants' solicitors (in light of the then recently amended summons filed 27 June 2019 which sought relief against both Dincel and Gaonor) whether the "proper Respondent" should be Dincel or Gaonor - rather than both (with the suggestion that the amended summons may be further amended) to which no reply was received.
5. While I note that relief against Gaonor was no longer pursued at the substantive hearing, it is clear that Gaonor and Dincel are related parties and that both have been closely involved with the Land. The conduct of both Dincel and Gaonor was obviously intertwined over the whole period relevant to the substantive proceedings. Dincel was the manufacturer of the Dincel product at premises owned by Gaonor at Erskine Park (which were operated pursuant to a development consent obtained by Gaonor). Gaonor was the owner of the Premises and had been intimately involved with the conduct at the Premises. Although the retention of contractors to conduct works on the Premises was undertaken by Dincel, much of the intercourse between Council and the applicants in relation to matters involving the conduct on the Premises equally engaged both Dincel and Gaonor. Representations, conduct and attendances upon Council throughout the period relevant to the substantive proceedings were made variously on behalf of either or both Dincel and Gaonor.
6. In this respect, in 2017 Gaonor lodged a development application seeking consent for use of the Premises for "home industry", considered in Dincel (No 4) at [13]. Later on, Gaonor made detailed written submissions to Council in response to Council serving a Notice of Intention to Serve an Order pursuant to Div 9.3 of the EPA Act (which was served on Gaonor as the owner of the Premises). Gaonor was actively involved in the lodgement of the planning proposal (Dincel (No 4) at [30]) and later lodgement of a further development application in May 2020 for development in relation to the Premises (Dincel (No 4) at [36]). Furthermore, although not presently relevant to this issue, the evidence now before the Court in relation to the present motion is that Gaonor continues to be involved with the Premises including the progression of the application for development consent made in July 2020 and more recently, the prosecution of the Class 1 Proceedings.
7. In the applicants' (single) points of claim (that is, filed on behalf of both Dincel and Gaonor) those parties spoke, in relation to most matters pleaded, with one tongue - even in relation to paragraphs relating to only one of the parties there was invariably a common response. There was common representation (through both solicitors and counsel) and common and mutual submissions were made in the substantive hearing on behalf each of Dincel and Gaonor.
8. Mr Dincel, who at all material times was the chairman, chief executive officer and a director of both Dincel and Gaonor, and the controlling mind of both Dincel and Gaonor, gave detailed evidence in relation to the conduct the subject of the substantive proceedings.
9. In the above circumstances, I consider that it is appropriate that the approach to costs set out in Order (9) remain and that the applicants remain jointly and severally liable for costs, and I dismiss the application for an alternative costs order.

Orders

1. The orders of the Court are: 1. The Notice of Motion filed by Dincel Construction System Pty Limited and Gaonor Pty Limited on 29 January 2021 and amended on 4 March 2021 is dismissed. 2. Dincel Construction System Pty Limited and Gaonor Pty Limited are to pay Penrith City Council's costs.

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: 18 March 2021