Wollondilly Shire Council v Antoun

Introduction 1 HER HONOUR: Before the Court is a notice of motion seeking to join the Bank of Western Australia Limited ("the Bank") as the third respondent in these proceedings pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 ("the UCPR"). For reasons which appear below this order is made. Factual Background 2 The factual background to this application has largely been set out in an earlier decision of the Court in these proceedings and is adopted here (including all defined terms) for the sake of convenience and expediency (Wollondilly Shire Council v Antoun [2010] NSWLEC 154 at [4]-[20]). Evidence of the Council 3 The council (in addition to the facts as found in Wollondilly) relied on an affidavit of Mr Ben Swain sworn 31 August 2010. Mr Swain is a solicitor employed by Hones La Hood, the solicitors for the council in the proceedings. 4 The affidavit deposed to communications between Mr Swain, Mr Jason Hones (Mr Swain's supervising partner) and Mr John Fam, a solicitor employed by Kemp Strang, the solicitors representing the Bank. The communications concerned the Bank's repossession of the property and consequential liability for the alleged unlawful structures constructed on it by the first and second respondents, Mr Simon Antoun and Mr Bechara El Skaf. Mr Antoun and Mr Skaf were previously the registered proprietors of the property. 5 After the vacation of the hearing of these proceedings on 16 August 2010 (which were listed for hearing on 17 and 18 August 2010), due to the Bank taking possession of the property, Hones La Hood wrote to Mr Fam on 17 August 2010 indicating that the hearing had been vacated and warning the Bank that should it fail to comply with the Notice of Intention to Give an Order issued by the council to it on 9 August 2010 ("the Notice"), the council would take appropriate steps to join the Bank as a respondent to the proceedings. 6 The letter requested the Bank, in the alternative, to simply remove the unlawful structures itself. The letter also drew to the Bank's attention s 121Y of the Environmental Planning and Assessment Act 1979 ("the EPAA") and the effect of that provision on it as successor in title. The letter stated that failure to remove the unlawful structures could constitute a breach of the EPAA. 7 On 27 August 2010, Mr Swain had a conversation with Mr Fam where Mr Fam told Mr Swain that he was still waiting on instructions from the Bank and that the Bank would like to "put the matter on hold until the property has sold". Mr Swain indicated to the Bank that the council intended to issue an order to remove the structures if it did not receive communication of the Bank's position by 30 August 2010. 8 On 30 August 2010, Mr Swain had another telephone conversation with Mr Fam wherein Mr Fam told him that notwithstanding several attempts he was unable to get a response from the Bank. Mr Fam told Mr Swain that he would update Mr Swain as to the Bank's position by 3.30pm on 31 August 2010. 9 On the same day as the telephone conversation, Mr Swain wrote to Mr Fam stating that if the Bank failed to comply with the council's Notice dated 9 August 2010, the council would issue an order to the Bank by "Friday 3 September 2009" to remove the structures. Presumably the Bank meant "2010". The letter went on to state that failing to comply with the order the council would seek orders from this Court similar to those contained in the present notice of motion. Again the letter urged the Bank to avoid incurring unnecessary legal expenses and to remove the unlawful structures itself. 10 The letter also clearly stipulated that the council did not agree to placing the proceedings on hold pending the sale of the property. Finally, the council referred in the letter to the Bank's refusal to provide an undertaking that the Bank remove the unlawful structures as a compromise position. The council stated that as a result of this refusal the council was required to incur legal expenses it would not otherwise have had to incur had the undertaking been given. The Bank was, therefore, on notice that the council could seek its costs in this regard. 11 The council also relied on an affidavit of Mr Jason Hones sworn 15 September 2010. Mr Hones is a partner at Hones La Hood. This affidavit attached communications between Kemp Strang and Hones La Hood over the form of an undertaking to be given by the Bank to remove the unlawful structures. 12 The first communication was dated 31 August 2010, and consisted of a letter from Kemp Strang offering a form of undertaking suitable to the Bank. 13 On 2 September 2010, the council responded by stating that the undertaking proffered by the Bank was unacceptable but that the council agreed to accept an alternative undertaking in the form enclosed in that correspondence. 14 On 13 September 2010, another form of the undertaking was received from Kemp Strang. On the same day, that undertaking was also rejected by the Bank but another alternative undertaking was proposed by Hones La Hood. Instructions were also sought in that correspondence on whether the Bank intended to contest the application for joinder. Finally, the letter stated that as a consequence of not knowing the Bank's position, the council was preparing the application as if it were contested, and therefore, counsel had been briefed. The letter stated that it was the council's position that it considered the Bank to be liable for its costs from 4 August 2010. It sought instructions from the Bank in this regard. 15 On 14 September 2010 Mr Hones received from Kemp Strang an executed undertaking from the Bank in the following form: IRREVOCABLE UNDERTAKING To: Wollondilly Shire Council C/- Hones La Hood Lawyers Level 4/54 Miller Street NORTH SYDNEY NSW 2060