Rosemary Corbett v Anita Hyde

The Pleadings

1. The relief claimed in the summons is declaratory and an order for the removal of the clear glass and reinstatement of the glass bricks.
2. The summons is in the following relevant terms: 1 A declaration that the First and Second Respondents have carried out development otherwise than in accordance with the development consent number 11888 approved on 21 December 1989 as amended on 10 May 1991 ("1991 Amendment Development Consent") on land at Lot:1 SP:40184 known as 1 / 29 Warren Avenue AVOCA BEACH NSW 2251 ("the Land"), contrary to the provisions of section 4.2(1)(b) (cf previous s 76A(1)(b)) of the Environmental Planning and Assessment Act 1979 (NSW) ("Act"), in that the First and Second Respondents have: a. Removed glass-bricks in three North-facing window cavities and replaced them with clear glass, in breach of the 1991 Amended Development Consent. … 3 An order that the First and Second Respondents, within 30 days from the date of these orders: a. comply with the 1991 Amended Development Consent by: i. Removing all clear glass that has been installed in the subject North-facing window cavities; and ii. Replace with glass-bricks.
3. Prior to the proceedings being commenced, a draft of the summons in identical terms was served on the respondents on 9 December 2019.
4. In an open letter addressed to Corbett's solicitor on 30 June 2020, the respondents agreed to declaratory relief being granted in the same terms as that sought in prayer for relief 1a of the summons. In addition, the respondents appeared to accept that they had removed the glass bricks in contravention on the 1991 consent. Significantly, there was no complaint in the letter about the form of the declaration or that it was in any way ambiguous as to which glass panes in which window cavities were the subject of the relief sought. Rather, at issue was the order for reinstatement: The purpose of this letter is to clarify, and hopefully reduce, the unresolved issues between our clients and is purposefully written on an open basis. Our clients feel that a number of inaccuracies and presumptions may have coloured your client's understanding of events and so we have gone into some detail in the hope of redressing them, and providing a detailed history of events that may not all be known to your client. Our clients starting point for an examination of the issues is the draft Summons that you sent to our client under cover of your letter of 13th December 2019 ("Summons") and the Relief Claimed thereunder. We are instructed to make the following comments and observations about each of the paragraphs of the Relief Claimed (for brevity we have paraphrased each of them). In the Summons your client seeks: 1. A declaration that our clients have undertaken development by the removal of the glass bricks and replacement with openable windows in breach of the 1991 Amended Development Consent (contrary to section 4.2(1)(b) - formerly section 76A(1)(b) of the Act). a. Our clients will consent to this declaration. b. As has previously been advised, our clients accept that, as first-time renovators they were naïve and wrong to accept the advice given to them by their builder that no approval was required for the works in question. Whilst the builder has consulted with Central Coast Council ("Council") when offering that advice, our clients do not contest that it was wrong. c. It is relevant to note that our clients did not initially set out to alter the windows of their property. They simply commenced a kitchen renovation that revealed the degraded and leaking glass bricks leading to long term and significant water penetration into the kitchen (corroding service connections), water impregnation of the Hebel bricks underneath the glass bricks (leading to pest infestation), and continuing water damage into the lounge room (again beneath leaking glass bricks). You already hold photographs of this damage. 2. An order that our clients comply with the 1991 Amended Development Consent and remove all the installed glass and replace it with glass bricks. a. Our clients will not consent to this order and contest that it would be an appropriate exercise of the Court's discretion in the circumstances detailed below. b. Our clients have not engaged in a planned course of action or continuing misconduct with a deliberate or blatant disregard of their obligations. On the contrary, once their non-compliance and breach of the Act became known to them on or about 20th July 2017, they immediately took steps to acknowledge and address it with Council….
5. This position was consistent with subsequent communication written by the respondents's solicitors on 17 September 2021, where it was stated that: I refer to our previous discussions about preparing the matter for hearing ahead of schedule, in an attempt to secure an earlier hearing date where possible. You may recall as part of our earlier discussion, we canvassed the fact that we would be preparing objections to your client's evidence and that might reduce the time required for the hearing. … … In our view: ● The Breach issue is a legal question and turns on construction of documents. ● The Discretion issue only arises if your client is successful on the first aspect of the case. On this basis, in our view, the Breach issue will be determined by legal submissions and evidence will be limited to copies of the relevant consent documents.…
6. In other words, no issue was raised about who had removed the glass bricks or which window cavities were the subject of the proceedings.
7. While no response to the summons was filed, in their defence (filed on 4 June 2021) to the points of claim (filed on 13 May 2021) the respondents did not admit, without more, the following paragraphs in the points of claim: 13 The obscure glass blocks in five North-facing window cavities on the Northern Elevation of the subject building have been removed and replaced with clear glazed windows. a. The approved Northern Elevation plan dated 3 September 1990 by Sterland Homes Project No. 16290 of the 1991 Amended Consent required five windows on the Northern Elevation of the subject building to be constructed of obscure glass blocks. b. The 1991 Amended Consent has been commenced and remains in force. c. The obscure glass blocks in four North-facing window cavities of the Northern Elevation of the required building required to in installed by the 1991 Amended Consent were removed on 19 July 2017 and have not since been restated in ongoing breach of the consent.
8. The respondents never sought particulars of the claim.

The Amendment Application

1. A schedule of the evidence adduced by Corbett, none of which was the subject of challenge by way of cross-examination, makes it plain that it is the respondents who removed the glass bricks from window cavities and replaced them with clear glass. The evidence is also sufficiently clear which window cavities are the subject of the relief sought (this conclusion is expanded upon below).
2. It is no doubt for this reason that Corbett, entirely reasonably, did not realise that who had removed the glass bricks or which window cavities in respect of which relief is sought in the summons was in dispute.
3. These controversies were only revealed for the first time on 31 January 2022, when the parties attempted to agree to facts and compile a list of real issues for determination, pursuant to Court orders. It was at this juncture that, in addition to any refusal to concede that it was the respondents who had removed the glass bricks, the respondents also refused to agree facts identifying which windows were the subject of the claim. The respondents's position was that these facts were uncertain because there were nine windows on the northern side of their residence adjacent to the Corbett's property, of which five compromised either only glass bricks or had partial glass bricks, whereas only three window cavities were referred to in the summons.
4. The following diagram annexed to the affidavit of Peter Garrett, a solicitor for the respondents (sworn 16 February 2022, for the purpose of the amendment application), illustrates the position of the nine windows:
5. Corbett says that it is, and always had been understood to be, the case that windows B, C and D are the windows the subject of the claim. It is the removal of the glass bricks in these window cavities that have detrimentally impacted upon her amenity.
6. By contrast, the respondents assert that it was not clear from the summons or the points of claim which of the nine window cavities were the subject of relief because the summons merely specifies "three North-facing window cavities" and the points of claim confusingly refers to both "five North-facing window cavities" (in the chapeau of paragraph 13) and "four North-facing window cavities" (in paragraph 13c).
7. There can be no doubt that windows A, G, H and I can be immediately ignored. These never had glass bricks. They were already clear glass. This leaves windows B, C, D, E and F. The evidence reveals that window F (including at the time of commencing proceedings) is mostly obscured by vegetation and that behind window E is a laundry with a limited view of the Corbett property.
8. Plainly, neither the summons nor the points of claim were drafted with the pellucidly that is to be expected from legal representatives in modern litigation. It is for this reason that, when these infelicities were drawn to Corbett's attention on day one of the two day hearing, an application to amend to specify precisely which window cavities were in dispute was foreshadowed by her counsel. Given the perceived minor nature of the amendments the need for a notice of motion was dispensed with by the Court.
9. Corbett sought to formally amend her originating process and pleadings at the commencement of the second day of the hearing. Regrettably the entirety of the second day was occupied by the application to amend. At the conclusion of the application, the Court granted leave to Corbett to amend her originating process and pleadings with reasons to follow. These are those reasons.

The Issues for Determination

1. Notwithstanding that they carried out the removal of the glass bricks, the terms of the 2018 DA, the terms of the s 121B stop work order, the terms of the 2018 consent, the terms of the 30 June 2020 letter, all of the evidence filed and served by Corbett, and their attendance at a mediation, the respondents maintained their claim that they do not know which window cavities are the subject of the proceedings, and therefore, they opposed amendments stating that windows B, C and D were the subject of the claim.
2. The respondents did so on the basis that to allow the amendment would cause them prejudice because, according to the Garrett affidavit, had they known it was these window cavities that were the subject of dispute the following would have occurred: 6 The different approach to the conduct of the litigation by the Respondents would likely have involved making forensic decisions and directing financial resources and legal resources in different ways as set out below. 7 Directing financial resources and legal resources to the protection of the existing BCD windows by, among other things, obtaining expert evidence in relation to the available view lines from numerous sitting and standing locations within the rooms behind BCD windows, so as to show the Applicant's discretionary concerns were overstated and that there was no reason for the making of orders in relation to BCD Windows. 8 The Respondents might likely have sought expert evidence from an architect as to the privacy impacts (aural, visual and lighting) of the privacy screens and glass bricks with reference to each specific window in issue. That is, the expert would have been instructed to separately assess and opine on the privacy impacts of specified windows. This expert evidence might likely have responded to the Applicant's expert report (especially insofar as Mr Harris does not distinguish between any particular windows). 9 Directing financial resources to obtaining development consent to change the angles of the louvres for BCD Windows to further reduce any overlooking if the expert evidence identified a reasonable concern, as well as carrying out such building work. 10 Directing financial and legal resources to obtaining expert evidence from an acoustic engineer to determine the acoustic contribution arising from the use of the large open balcony to the East of rooms "B" and "C". The Respondents could have sought evidence about whether the Applicant's acoustic amenity is inevitably compromised by sound emanating from that open deck. 11 If that expert evidence identified a reasonable acoustic concern, then dealing with that concern by varying the way in which the balcony was used so as to lessen the acoustic impact on the Applicant's property. 12 Because of the significant financial cost involved in carrying out such studies, it was not worth the financial expense if one of the three windows in relation to which Order 3 was sought was the former glass bricked laundry window E and/or window F.
3. In light of the submissions made during the application, the following issues arise for determination: 1. the correct test for permitting late amendment of pleadings; 2. whether the respondents in fact knew which window cavities were in dispute; 3. whether the respondents ought to have clarified which window cavities were in dispute; 4. whether the respondents would be prejudiced if the amendment was allowed; and 5. if so, can this prejudice be cured?
4. It is both convenient and efficient to deal with the issues together in a summary manner below.

Leave Ought to be Granted to Corbett to Amend the Summons and the Pleadings

1. The power to amend documents is relevantly contained in s 64 of the Civil Procedure Act 2005 ("the CPA"): 64 Amendment of documents generally (1) At any stage of proceedings, the court may order - (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.
2. Section 58 of the CPA states: 58 Court to follow dictates of justice (1) In deciding - (a) whether to make any order or direction for the management of proceedings, including - (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court - (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant - (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56(3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.
3. Section 57 is concerned with the objects of case management and provides that: 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects - (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).
4. The overriding purpose is set out in s 56 of the CPA relevantly as follows: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
5. Also of relevance are ss 59 and 60 of that Act: 59 Elimination of delay In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. 60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.
6. The seminal case concerning the late amendments of pleadings is Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, where the High Court of Australia disposed of the notion that notwithstanding that any prejudice caused by an amendment to pleadings could be cured by an award of costs, this did not mean that the amendment ought to be granted (at [98]).
7. In Aon the High Court emphasised that in the facts of that case the late amendments sought to introduce a new and substantial claim so as to require Aon to effectively "defend again, as from the beginning" (at [104]). The Court was also troubled by the absence of any explanation as to why the amendment had not occurred earlier, with the Court noting that the statements made by counsel were not evidence (at [106]-[109]).
8. Aon, and its application in the context of the statutory case management regime established by the CPA, was subsequently considered and applied in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 were the Court said (at [51] and [56]-[57]): 51 In Aon Risk Services Australia Ltd v Australian National University (60), it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice. … 56 The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose. 57 That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.
9. More recently, the New South Wales Court of Appeal has had occasion to consider the late amendment of pleadings in Johnson v Mackinnon [2021] NSWCA 152. There the Court identified the "key question" as "whether an amendment will occasion unfair prejudice to the other party" (at [96]). In Ah Sam v Mortimer [2021] NSWCA 327 the Court of Appeal again emphasised that the central question was whether allowing a late amendment occasioned unfair prejudice (at [34]).
10. Relying on Aon, counsel for the respondents, Craig Leggat SC, submitted that Corbett's failure to provide an explanation for the delay in making the amendment was fatal to the application, or at the very least, was a factor upon which considerable weight would be placed by the Court thereby resulting in the refusal to grant leave.
11. There are several difficulties with this submission. First, Aon does not stand for this bald proposition. Rather, as Expense Reduction and subsequent cases make plain, the touchstone is that of prejudice, together with the factors provided for in the statutory framework quoted above; it is not the mere failure to provide an explanation for the delay in making the amendment. While the latter must be taken into account, failure in this regard is not determinative.
12. Second, an explanation was provided by Matthew Twyford in his affidavit sworn 15 February 2022 (filed by Corbett in support of her amendment application), albeit expanded upon by Corbett's counsel, Andrew Pickles SC. This was to the effect that a draft copy of the summons was served upon the respondents on 19 December 2019, and that this letter, together with the respondents's letter dated 30 June 2020, caused Corbett to conclude that there was no problem with the summons.
13. In my view, this explanation ought to be accepted. It beggars belief that if there was any real confusion as to the window cavities the subject of the relief claimed in the summons, that clarification would not have been sought earlier by the respondents. Rather, it appears from the explanation given by Leggat SC that the respondents sought to take forensic advantage of the patent ambiguity in the summons and the pleadings by endeavouring to argue that the Court could not (or at least would not) order the relief sought because of the imprecision in the language of the summons (citing Redland Bricks Ltd v Morris [1970] AC 652 at 666-667 and Payne v Mosman Municipal Council [2000] NSWLEC 25 per Pearlman J at [28]-[31]).
14. It appears that the respondents placed significant reliance on this pleading point and on other legal arguments concerning the effect of the 2018 consent, the 2019 CC and the 2019 OC, on the 1991 consent (as modified). Indeed, so confident were the respondents of success in these legal submissions that almost no evidence was filed in response to Corbett's evidence on discretion and no challenge was made to Corbett's evidence in this regard. This was presumably one of the "forensic decisions" that Garrett was referring to in his affidavit. But, as the Court of Appeal stated in Mackinnon, "the loss of a forensic opportunity to make a 'no case' submission based on defects in the pleadings will usually carry little weight in the balance of prejudice" (at [96]). This Court is not a court of strict pleading, as the power contained in ss 56 to 60 of the CPA attest to.
15. Given, moreover, the wide discretionary power afforded to the Court to order relief under s 9.46 of the EPAA, this decision was courageous in the extreme. There is nothing in s 9.46 of the EPAA preventing the Court, once the evidence has been heard and assuming that breach has been established, from specifying in clear and precise terms which window cavities the declaratory and mandatory injunctive relief (or both) is directed to.
16. Accordingly, and contrary to the submission made by the respondents, permitting the amendments to be made will in fact assist in ameliorating the prejudice arising from the respondents having failed to respond to Corbett's case on discretion. This is because a consequence of allowing the amendments is that the case has adjourned part-heard until later in the year thereby permitting the respondents to file and serve further evidence. If any party is prejudiced by the making of the amendment, it is Corbett, not the respondents.
17. The respondents appeared to submit (Leggat SC repeatedly refused to clarify his argument) that it could be inferred that the relief sought in the summons was somehow deliberately vague, or as Leggat SC, stated that those words were "deliberately used". It is unclear what this contention means, but if Leggat SC was suggesting that some adverse inference ought to be drawn as to Corbett's intention, this was not put to Twyford who was available for cross-examination (Browne v Dunn (1893) 6 R 67).
18. In any event, I do not accept that the respondents did not know which window cavities were the subject of complaint in the summons and pleadings, notwithstanding the deficient drafting of those documents. First, the willingness of the respondents to accede in the letter dated 30 June 2020 to the declaration in the form currently argued about strongly suggests that they knew which windows were in dispute.
19. Second, any sensible reading of the 2018 planning instruments (the 2018 DA and 2018 consent) make it plain which window cavities were in issue. Why else were privacy screens installed on some, but not all, windows where the glass bricks had been removed?
20. Third, the affidavit evidence adduced to date reinforces the conclusion that the respondents knew which window cavities were the subject of relief. As stated above, Corbett provided to the Court a schedule of the references in the evidence to the removal of glass bricks, from what window cavities, and the consequential amenity impacts of their removal (see for example the affidavit of Corbett dated 23 April 2021 and Roger Corbett dated 23 April 2021). At the very least, during the course of the application it was conceded that the report of Grahame Harris, an expert architect, that was directed to the adequacy of the fixed louvered screens attached to two of the three impugned windows to mitigate the noise, light and privacy impacts of the removal of the glass bricks, identified two of the windows in dispute. His affidavit was filed 7 May 2021. It is therefore not correct to state, as Garrett does in his affidavit, that Harris did not identify the windows to which his report was directed. In my view he does when his report is read alongside the photographs attached to it. There was no impediment to the respondents commissioning their own expert evidence in reply with respect to, at the very least, these two window cavities.
21. I therefore have no hesitation in finding, whether by inference or as a result of direct evidence, that the respondents knew which of the three out of the nine windows on the northern side of the property the proceedings were directed to.
22. Finally, it should be noted that to the extent that Garrett deposed that the respondents were prejudiced because they had been denied the opportunity of obtaining expert evidence on the acoustic impact of the large open balcony on the northern elevation of the property, this balcony has not been altered in any way by the allegedly unlawful works. It does not form any part of the present matter. The relevance of any evidence of this nature is arguable at best.
23. Examining the factors that the Court must have regard to referred to above in ss 56 to 60 of the CPA, the amendment must be permitted. Because of the prolonged nature of the hearing of the application to amend, finalisation of the matter was not possible within the two days allocated to the proceedings. Therefore, the matter would have been stood over part-heard irrespective of whether or not leave to amend was refused or granted. Considerations as to 'quickness' (see ss 56 to 59 of the CPA) and possibly 'cheapness' (see ss 56 to 58 and s 60 of the CPA) were consequently rendered nugatory.
24. To the extent that the respondents submit that they must now adduce evidence to meet Corbett's discretion arguments, they can, as they were originally intending to, rely on their legal submissions as a complete answer to the proceedings. Nothing has changed in this regard and no prejudice arises by amending the pleadings. If, in the alternative, the respondents now want to avail themselves of the opportunity to file evidence in reply to the issue of discretion, on any view, it is considerably more 'just' (see the matters listed in s 58 of the CPA) to permit the amendment. Put another way, if any prejudice has arisen by the grant of leave to amend, this prejudice will be cured by permitting the respondents to file further evidence. To reiterate, if the Court does not accept the respondents's legal arguments as to breach (which have neither been heard nor determined), then the Court has the power to craft terms of relief that leave no doubt as to the window cavities to which it is directed. Such a task would not be difficult in the circumstances of the case.

Costs of the Application to Amend

1. The respondents foreshadowed seeking an award of costs in their favour on the basis of what was described by Leggat SC as a long line of established authority that this was the price payable for the Court's indulgence to Corbett in allowing Corbett to amend.
2. Corbett similarly foreshadowed making an application for costs premised on the manner in which the respondents had conducted the amendment application.
3. It was agreed that in all the circumstances that the costs of the application ought to be reserved. The Court agrees with this course.

Orders

1. The formal orders of the Court are that leave is granted to Corbett to amend her summons and points of claim. The costs of the application are reserved. The parties are to file consent or competing short minutes of order for the further conduct of the part-heard proceedings.

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: 22 February 2022