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Parties: Wollondilly Shire Council (Respondent on the Motion)
James Godfrey (First Applicant on the Motion)
Picton Sand and Soil Pty Ltd (ACN 159 282 130) (Second Applicant on the Motion)
ECC Earth Civil Contracting Pty Ltd (ACN 638 033 379) (Third Applicant on the Motion)

Representation: Counsel:
M Wright SC with D Robertson (Respondent on the Motion)
J Ireland KC, solicitor (Applicants on the Motion)
Solicitors:
Lindsay Taylor Lawyers (Respondent on the Motion)
K M Harkness & Co (Applicants on the Motion)

File Number(s): 2024/00035241

Publication restriction: Nil

JUDGMENT

Introduction and outcome

1. In these Class 4 civil enforcement proceedings commenced by summons on 29 January 2024, Wollondilly Shire Council (‘Council’) sought declaratory and consequential relief against three respondents in relation to the use and development of land at 28 Wonga Road, Picton (‘Land’).

2. In Wollondilly Shire Council v Godfrey [2026] NSWLEC 21 (‘Judgment’), I found that certain activities and conduct undertaken by the respondents on the Land were unlawful and that Council was entitled to certain discrete declaratory and injunctive relief. For concision, a copy of the orders made, comprising 17 paragraphs, is annexed to these reasons and marked “A”.

3. By notice of motion filed 12 March 2026, the respondents (applicants on the motion) seek the following relief:

“…

2 An order pursuant to UCPR 36.16 that Order 17 made by Robson J. on 27 February 2026 in these proceedings be set aside and in lieu thereof it be ordered that:

a. There be no order as to costs in the proceedings to the intent that each party is to bear its and his own costs of the proceedings; or alternatively

b. The Respondents pay one third of the Applicant Council’s costs of the proceedings or such other proportion of those costs as the Court thinks fit.

3 An order pursuant to UCPR 36.16 that Orders 11, 12 and 13 made by Robson J. on 27 February 2026 in these proceedings be set aside.

4 Alternatively to Order 2 above, an order that each of Orders 11, 12 and 13 made by Robson J. on 27 February 2026 in these proceedings be varied by addition of the following words namely “by using any of the structures and works identified in Order 10 above in or for the purposes of the conduct the Respondents’ business of a wholesale sand and soil yard or the Respondents’ business of a retail Landscape and Nursery Supplies”.

5 An Order that the operation of Orders 11, 12 and 13 made by Robson J. on 27 February 2026 in these proceedings be stayed until 29 May 2026, with liberty to the Respondents to apply for a further extension of that stay if so advised following institution of their intended appeal to the Court of Appeal.

6 An order providing for the costs of this Notice of Motion.”

4. In summary, the relief sought by the respondents includes, first, orders amending orders (11), (12) and (13); second, that the provisional order in relation to costs in order (17) be set aside and an alternative order be made; and third, that the Court grant a stay of the operation of certain injunctive relief (in orders (11), (12) and (13)) as the respondents have filed a notice of intention to appeal to the New South Wales Court of Appeal.

5. The hearing of the motion proceeded before me on 30 March 2026.

6. For the reasons that follow, I find that first, orders (11), (12) and (13) should be amended to clarify and accord with the reasons for judgment; and second, that Council is entitled to its costs of the primary proceedings. I make no order for costs in relation to the notice of motion filed 12 March 2025.

Evidence

7. For convenience, these reasons adopt the abbreviations and definitions used in the Judgment. A number of background facts relevant to the motion are set out at [6]-[30] of the Judgment and are not repeated. Further facts will be noted in my consideration of the parties’ submissions.

8. In support of their motion, the respondents read two affidavits of Daryl Warry sworn 12 and 26 March 2026 and the affidavit of Teonie Mitchell sworn 20 March 2026.

9. In his affidavit of 12 March 2026, Mr Warry, a registered surveyor retained by the respondents, deposes that a development application in relation to the Land was lodged by way of Council’s internet portal with Council on 14 October 2025 and that the development application was returned to Mr Warry the following day with correspondence notifying him of Council’s rejection of the development application citing six “reasons”.

10. Mr Warry deposes that as the hearing of the primary proceedings was commenced in this Court on 20 October 2025, given Council’s position in the proceedings, he considered that any further development application would not be considered by Council on its merits until the proceedings were decided.

11. Mr Warry responds to the six “reasons” for the rejection of the development application communicated to him on 15 October 2025.

12. In his affidavit of 26 March 2026, Mr Warry deposes that on 25 March 2026, on behalf of the respondents, he lodged an application with Council for a Building Information Certificate in respect of works and structures which the Court ordered be removed from the Land.

13. Ms Mitchell, the manager of both PSS and the ECC (the second and third applicant on the motion) has primary responsibility for the day-to-day running of the two businesses, subject to the direction of Mr Godfrey. Ms Mitchell gives evidence of the nature of the respective businesses of PSS and ECC, which she deposes variously involves the ownership of a number of trucks which are used on a day-to-day basis for the collection of sand, soil and landscape materials brought onto the Land from quarries and other sources of supply.

14. Ms Mitchell deposes as to conduct of the PSS’ business which has operated in this capacity since 2002 and has an average payroll cost per month of $70,000, average fuel costs per month of $65,000, and that the average monthly (sales) turnover of the PSS business was approximately $300,000 over the past six months. She deposes that in her opinion the PSS business cannot survive or continue to be viable without certain facilities continuing to be available to allow access to stocks of landscaping materials presently located in the bays, bins and stockpiles currently constructed and maintained, and the availability of trucks, loaders and other equipment to carry out delivery and loading functions required in the business.

Submissions

Amendment of orders and stay

Respondents’ position

15. The respondents submit that there is a lack of congruence between the findings of the Court, the reasons for the Judgment, and the declarations and orders made.

16. In circumstances where the Court found first, that development consent D70/97 had not lapsed (as had been suggested by Council) and that certain conditions of the consent had clearly not been complied with; and second, that the present activities and use of the Land go beyond that consent, the specific relief granted by the Court (and orders made) do not, on a literal interpretation, allow for the enduring right to continue to conduct a “wholesale sand and soil” business on any scale.

17. In particular, the declaration in order (6), does not describe with precision the activities which constituted the breaches involved and, further, order (13), does not identify what can or cannot be done without offending the engagement of the prohibition.

18. The respondents are concerned that, on one reading, any activity in the continuing operation of a “wholesale sand and soil” yard could be seen as a contempt of the order.

19. Further, order (13), as drafted, has immediate effect whereas the removal and decommissioning required under order (14) was suspended from operation for three months. Problematically for the respondents, order (15), which requires the removal within three months of all materials brought onto the Land for the purposes of “landscaping supply materials” which included “excavated sand, soil, rock, clay, road base, concrete and blue metal dust, and any structures used to store those materials, including soil bins”, is “incompatible” with the finding that there is, by dint of D70/97, a continuing consent held by the respondents to conduct a “wholesale sand and soil” business.

20. The respondents further submit that the injunction in order (16) has a similar defect, and its operation is more serious as it is immediate and does not provide for the three month “window” allowing for the continuation of the business before it engages.

21. The respondents submit that, in the circumstances, the Court should either set aside, pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’), orders (11), (12) and (13), or in the alternative, vary those orders by adding the wording in prayer 4 of the motion noted at [3] above.

22. Apart from the above, the respondents maintain that, in the circumstances of the institution of their intended appeal to the Court of Appeal, it is appropriate that the operation of orders (11), (12) and (13) be stayed until 29 May 2026, with liberty to apply for a further extension if so advised.

Council’s position

23. Council opposes the relief sought however accepts that there may be some incongruity between the reasoning at [107] of the Judgment where I noted a disposition to postpone the operation of the “injunctive order” for three months, and orders (11), (12) and (13), which do not make reference to such postponement.

24. Council submits that it had assumed that the orders were to be postponed and has communicated that to the respondents’ solicitors. Council suggested in a letter of 25 March 2026 that adding certain wording to orders (11), (12) and (13) would address any concerns.

25. In response to the respondents’ submissions that orders (11), (12) and (13) be set aside, Council refers to the well-known principles in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 (‘Autodesk’) at 300-302; [1993] HCA 6, wherein Mason CJ stated:

“The exercise of the jurisdiction to reopen a judgment and to grant a rehearing is not confined to circumstances in which, by accident and without his or her fault, the applicant has not been heard.

…

It is true that the jurisdiction is to be exercised with great caution …, having regard to the importance of the public interest in the finality of litigation.”

26. Council submits that, to the extent which the respondents now seek to raise matters of discretion in relation to final relief, the respondents’ deliberate forensic decision not to call evidence in relation to discretion at the primary hearing should now bind them. For example, Mr Warry’s recent affidavit of 12 March 2026 refers at length to the development application which was specifically mentioned at the hearing and was noted at [103] of the Judgment.

27. In relation to prayer 3 of the motion, Council submits that apart from the suspension of the operation for a limited period, orders (11), (12) and (13) are final and binding, and were made after a contested hearing where the Court has given detailed consideration to the whole of the evidence and the parties detailed submissions.

28. Council submits that orders (11), (12) and (13) are orthodox and clear in their terms, and each does no more than require the respondents to not use the Land in breach of D70/97 (order (11)), D179/94 (order (12)) and D144/00 (order (13)).

29. In relation to prayer 4 of the motion, Council submits that order (10) is a declaration which lists the items of physical work identified in the evidence before the Court at the primary hearing which been carried out without development consent where such consent was required. As such, Council submits that the respondents’ suggested additional words to each of orders (11), (12) and (13) would only serve to confuse the plain intent of those orders, and that the respondents’ suggested wording would add a significant limitation onto the meaning of each order by confining each order to the items listed in order (10).

30. In relation to prayer 5 of the motion, a stay until 29 May 2026 should not be ordered in circumstances where Council has been seeking compliance with the planning law on the Land for many years. If the Court was minded to grant a stay for a limited period, it should be on terms including that the respondents file and serve their notice of appeal by 30 April 2026. Upon filing the notice of appeal, the respondents should then pursue any extended stay before the Court of Appeal.

31. Council further submits that the relief sought in prayers 3 and 4 of the motion are contrary to established principles and an attempt to go behind the Court’s orders and Judgment and reargue the case. In the circumstances, there can be no suggestion that the respondents did not have full opportunity to put their case at hearing. As such prayers 3 and 4 of the motion should be dismissed, and the respondents should be ordered to pay Council’s costs of the motion.

Consideration

32. Variation of a judgment or order can occur under the “slip rule”, pursuant to 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.

33. The principles applicable to the Court’s power to exercise discretion under the “slip rule” are well-known. The courts have consistently held 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 Limited v The J. Aron Corporation & T**he Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195 at [116].

34. 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.

35. It has been recognised that 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 at 684; [1982] HCA 41; State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29 at 38; [1982] HCA 51.

36. In Mendonca v Tonna (No 3) [2020] NSWCA 332 at [7], the Court held that its exercise of power under the slip rule is subject to the same limitations as set out by Mason CJ in Autodesk (as quoted above), being that it is not to be exercised for the purpose of reagitating arguments that have already been considered by the Court, or for raising new arguments that could have been, but were not made during the hearing.

37. 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) (‘CPA’). As the Court of Appeal noted in Majak v Rose (No 5) [2017] NSWCA 238 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…”

38. With the above principles in mind, and referring to my consideration and findings at [107]-[109] of the Judgment, it is clear that my intention was to delay the operation of relief otherwise ordered for the reasons stated in those paragraphs. Orders (11), (12) and (13), even considered with the time limitations in orders (14) and (15), and again with my findings at [107] of the Judgment, do not discretely provide for “postponement” as I stated and intended.

39. Council accepts, properly my view, that a stay of orders (11), (12) and (13) until 29 May 2026 would also give effect to the assumed intent of [107] of the Judgment without need to vary the terms of orders by the application of the slip rule.

40. In the circumstances, I consider that it is appropriate that orders (11), (12) and (13) be amended pursuant to the slip rule and that each of those orders be amended by addition of the words as suggested by Council in its letter dated 25 March 2026 to the respondents, being “such order not to take effect until three months from the date of these orders, being 29 May 2026”.

41. Although the above change effectively addresses one concern of the respondents, given that the respondents have now filed a notice of intention to appeal and are prepared to undertake that the notice of appeal is promptly filed, I consider that, for abundant caution, an order granting a stay of the orders as now amended is appropriate, on the basis that the respondents file any notice of appeal in the Court of Appeal on or before 30 April 2026.

42. The respondents’ other concern related to the width and generality of the injunctive other orders.

43. In relation to the respondents’ submissions in regard to incongruency, I am conscious of the need for a recipient of an injunctive order to be in a position where the recipient knows exactly what the recipient is obliged to do however it is not always possible to specify in the language of the injunction every detail of the obligation imposed where the practicalities of facts make it difficult to frame injunctive relief in any but the most general terms: Thompson-Schwab v Costaki [1956] 1 WLR 335 at 340; Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis Butterworths) at 21-489.

44. However, given my findings at [98]-[108] that there were “intermixed” and “intertwined” activities being undertaken on the Land well in excess of the conduct that was properly the subject of D70/97, D179/94 and D144/00, subject to the above, I consider the orders are otherwise sufficiently clear and, on their terms, require compliance with the said consents.

45. Although the respondents marshalled evidence in regard to the Court’s exercise of discretion, I accept the submissions of Council and find that the evidence of Mr Warry and Ms Mitchell is of little assistance in circumstances where, first, the respondents had every opportunity to call such evidence in the primary proceedings and chose not to do so; and second, I do not consider that the evidence is, in any event, persuasive in relation to any of the issues that arise for my consideration of this motion.

Costs

Respondents’ position

46. The respondent reads the affidavits of Daryl Warry, sworn 12 and 26 March 2026, in support of an alternate costs order to that which was provisionally made in the Judgment.

47. The respondents point to the discretion, pursuant to s 98 of the CPA, which is read with r 42.1 of the UCPR which provides that costs should follow the event unless “some other order should be made”, and submit that Council’s primary case was that all previous development consents granted by Council had lapsed in circumstances where that relief was clearly sought in the pleadings and submissions relied upon by Council in the primary proceedings.

48. The respondents note that by the commencement of the primary hearing, they had accepted that the consent granted in 2007 by Jagot J (D884-05) had lapsed, and, in those circumstances, the Court found that both the 1997 consent (D179/94) and the 2000 consent (D144/00) as modified were extant and operative. Although the Court found that conduct undertaken by the respondents was outside the legitimate parameters of those consents, Council was mostly unsuccessful in its case that all consents had lapsed which was highly significant in the outcome of the true dispute between the parties.

49. The respondents also make much of Council’s 24-hour rejection of the development application lodged in October 2025, which the respondents say was rejected on “specious” grounds.

50. The respondents further submit that because Council had maintained that D179/94 and D144/00 had lapsed, the respondents were left with no option than to defend the proceedings, and that Council’s position deprived the respondents of the ability to negotiate the “less drastic” elements in Council’s claims that might have avoided much of the costs in the proceedings.

51. The respondents submit that, in those circumstances, it is a fair and just result that each party bears its own costs of the proceedings. In the alternative to reflect Council’s limited success, the respondents submit that any costs order in favour of Council should be limited to 30%.

Council’s position

52. Council submits that, contrary to the respondents’ submissions, this is not a case where there has been a mixed outcome. First, Council sought various declarations and orders against the respondents in its amended summons (and its amended points of claim) and the respondents specifically denied that Council was entitled to any of the relief sought in its amended summons.

53. Secondly, the respondents’ position in their points of defence was both unclear and incoherent. The respondents contended that each of the four development consents had not lapsed (importantly including development consent D884-05 (granted by Jagot J in 2007)). However, if development consent D884-05 had not lapsed, it contained a condition which required the respondents to surrender all previous development consents.

54. Despite their pleadings, the respondents shifted their position significantly at the outset of the primary hearing when they accepted for the first time (on the day before the commencement of the hearing) that the consent granted by Jagot J in 2007, D884-05, had in fact lapsed and that this was at a time where Council had already spent much time and cost in dealing with that specific issue.

55. Even with the respondents’ concession in relation to D884-05, the remaining issues related to, first, the nature and extent of permissible use under D179/94; second, whether D70/97 and D144/00 had lapsed and were no longer operative and, if they remained operative, the scope of development approved under each consent; third, whether the respondents’ activities were in fact unlawful; and fourth, the nature and extent of any relief that should be granted.

56. Council submits it succeeded in whole or in part on each of those four issues. In particular, the scope of D179/94, where Council had accepted that D179/94 continued to apply to the Land, and submitted that it only permitted storage of earthmoving equipment within an approved shed and this issue was contested by the respondents and the Court accepted Council’s position at [71]-[76] of the Judgment.

57. In relation to the operation and scope of D70/97 and D144/00, while the Court held, contrary to Council’s position, that the consents had not lapsed, nevertheless the Court held, accepting Council’s submissions, that the respondents had failed to comply with the various conditions of each of D70/97 and D144/00 and that the present activities and Land were “well beyond”, and “clearly not in accordance with”, the activities permitted under each of those consents.

58. As to the third issue, the Court identified numerous aspects and activities and conduct of the respondents being carried out on the Land which were unlawful because they were carried out without development consent at [90]-[91] of the Judgment. The Court also accepted Council’s submissions that the respondents’ unlawful activities on the Land were having a materially adverse effect on the amenity of rural residential neighbours at [92] of the Judgment.

59. As to the fourth issue, the Court granted various of the declaratory and injunctive relief as sought by Council.

60. Council submits that it was successful in whole or in part in respect of each issue arising from the proceedings and, as such, there is no occasion for the Court to apportion costs on an issue-by-issue basis. As such, none of the matters raised by the respondents would cause the Court to reconsider its proposed costs order.

Consideration

61. Section 98 of the CPA confers a wide discretion on the Court, and the Court has full power to determine “by whom, to whom and to what extent costs are to be paid”. The principles in relation to the award of costs are well-known and are not repeated.

62. As noted at [109] of the Judgment, it was my view that, by virtue of r 42.1 of the UCPR, it was appropriate, subject to hearing from the parties, that the usual order that costs follow the event should apply, such that Council be awarded its costs of the proceedings. Having received further evidence, and written and oral submissions, I maintain that view. My reasons, which generally reflect Council’s submissions summarised above, may be briefly stated.

63. First, I do not consider that Council was unsuccessful in circumstances where, except for the Court not granting discrete relief in relation to the lapsing of two development consents, Council achieved substantial relief. I do not consider that those particular issues were discrete from the overall issue, being that the respondents were conducting operations on the Land contrary to a number of consents.

64. Secondly, I am not satisfied that the discrete issues in relation to the lapsing of D179/94 and D144/00 are themselves able to be separated in circumstances where the issues that were before the Court, particularly following the respondents’ concession in relation to D884-05 at the commencement or shortly before the primary hearing, left live issues in relation to the nature and extent of use under those consents.

65. Thirdly, conscious of the broad discretion to be exercised, and considering that a separable issue can relate to “any disputed question of fact or law”, I consider that all the primary issues in the proceedings were sufficiently related. As such, I am not prepared to attempt to exercise the discretion as to costs with arithmetic precision, such that Council should be deprived of a portion of its costs when it is my view that it was significantly successful in relation to its claims.

66. Further, Council’s failure to establish that two consents had lapsed was not “highly” significant because, first, Council had not submitted that the four relevant consents had lapsed as Council had accepted that D179/94 remained operative and even though the Court had held that D70/97 and D144/00 had not lapsed, the Court held that the respondents had failed to comply with various conditions of those consents.

67. In summary, I accept Council’s submissions that, in relation to the four discrete issues noted above, Council was mostly successful, and I have taken into account in the exercise of my discretion the respondents’ conduct over the whole of the proceedings, in particular the abandonment of the claim in relation to D884-05 following the commencement of the proceedings.

68. In relation to the further evidence called by the respondents, I do not consider that the respondents’ attempt to lodge a new development application on 14 October 2025 shortly before the commencement the primary hearing, and Council’s prompt rejection of that application, or the more recent lodging of a Building Information Certificate (if this is relied upon), have little, if any, relevance to any outstanding issue before me. Further, I am not satisfied that the evidence of Mr Warry and/or Ms Mitchell in its present form is probative. I accept the submission of Council that evidence in relation to the exercise of discretion is properly brought at the primary hearing and, in any event, in relation to Ms Mitchell’s evidence, I note that there are no accounts or financial records to confirm the claims made in regard to any financial impact. As submitted by Council there is no explanation from the respondents as to why such evidence was not led at the primary hearing. Moreover, I consider this evidence has no relevance to the exercise of the Court’s discretion in relation to costs given my findings in relation to the other matters in dispute.

69. Conscious of my findings at [98]-[108] of the Judgment, and repeating my comments at [44] above, while I found D70/97 and D144/00 had not lapsed, it is abundantly clear that the “intermixed and extensive” activities being undertaken on the Land were well in excess of any conduct that was properly the subject of the D70/97, D179/94 and D144/00 and the manner in which I dealt with such matters is detailed at [108] of the Judgment.

Orders

70. The orders of the Court are:

71. Orders (11), (12) and (13) made 27 February 2026 are each amended by the addition of the words “…such order not to take effect until 3 months from the date of these orders, being 29 May 2026”.

72. Order (17) is replaced with “The respondents are to pay the costs of these proceedings”.

73. On the basis that the respondents file any notice of appeal in the New South Wales Court of Appeal on or before 30 April 2026, I grant a stay of orders made 27 February 2026 (and amended on 2 April 2026) until 29 May 2026.

74. No order as to costs of the notice of motion filed 12 March 2026.

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Annexure A (105 KB, pdf)`