25 It is reasonable for nine months to be given for compliance with orders 2(iv) and one month for order 2(v) as that is how long the work is likely to take and this will enable Dr Falamaki to find the necessary finance. Order 2(iii) has been complied with as the necessary work had been done at the time Talbot J made orders on 17 February 1999.
26 A number of cases were referred to as setting out the principles applicable to the exercise of the general discretion of the Court to revisit final orders, exercising the "liberty to apply" provisions as provided in order 5 of the Court of Appeal made on 4 April 2001.
Council's submissions
27 Talbot J's orders are interlocutory in form and were so considered by the Court of Appeal in 2001. They are final in substance however given that they were intended to determine finally the issues considered by his Honour in his judgments of 19 June 1998 and 17 February 1999. They have not been amended since 2001 by any further Court order. The principles articulated in cases such as Wentworth v Rogers (Supreme Court of New South Wales, Sperling J, 28 April 1995, unreported), Brimaud v Honeysett Instant Print Pty Ltd (Supreme Court of New South Wales, McLelland J, 19 September 1988, unreported), Nominal Defendant v Manning (2000) 50 NSWLR 139, Todd v Novotny [2000] WASC 308 and Clairs Keeley (A Firm) v Treacy (2004) 29 WAR 479 are applicable.
28 The Court can exercise its discretion to vary orders 1 and 2 made by Talbot J as these are interlocutory in nature but the authorities make clear that this can be done only in very limited circumstances, given that they are essentially final orders in substance. The Council submits no such discretion should be exercised in this case to allow further time for compliance given the substantial period of several years in which the orders have not been complied with since the extension was granted by the Court of Appeal to 9 May 2001 and 6 June 2001. Order 2 for demolition as contained in the Council's Notice of Motion dated 12 February 2009 should be made. Appropriate orders giving effect to the order for demolition can be made after further discussion with the parties as to the form of orders necessary to achieve that outcome.
29 Alternatively the second set of orders handed up in the hearing (par 8) varies orders 2(iii) and (iv) to allow a three month period to complete the structural work required by the plans referred to in order 2(i)(a) and (b). The Council does not raise as an issue compliance with orders 2(i) and (ii). There is an issue whether order 2(iii) has been complied with given that no work has been done on the site since the orders of Talbot J and the Court of Appeal were made. The main issue to focus on however is order 2(iv) which requires the work to be completed in any event. It is necessary to give effect to the order for demolition without requiring yet further Court appearances. Dr Falamaki is required under order 1(iv) to effect demolition if further work does not occur without the need for further order. Under order 1(iva) the Council could enter the land and undertake demolition itself under Uniform Civil Procedure Rules 2005 (UCPR) r 40.8 (Substituted performance) if demolition by Dr Falamaki does not occur, with recovery of costs under order 1(ivb).
Finding
30 There has been a substantial narrowing of the issues with which I need to deal in this matter so that much of the evidence relied upon in terms of the numerous expert reports read, as identified above, does not need to be considered in detail. I note that in any event there did not appear to be a great deal of disagreement amongst the parties' respective experts. The importance of that evidence is to inform the Court's decision about what extension of time for the building work should be given to Dr Falamaki, assuming that I decide to make such an order.
31 In terms of the issues in dispute as between the parties in light of the amended motions filed by each, there is no evidence that any work has been undertaken on the site since the orders were made in 1999 by Talbot J, and in 2001 by the Court of Appeal. There is now no dispute that orders 2(iv) and (v) of the orders of Talbot J in 1999, as extended by the Court of Appeal in 2001, have not been complied with, contrary to the position of Dr Falamaki at the outset of the hearing. Dr Falamaki has submitted that he has complied with order 2(iii) of Talbot J because of work done prior to that order being made by Talbot J. Dr Falamaki stated that he intended to identify that work on a DVD produced in 1998. I note that the part of his affidavit dated 13 May 2009 which refers to that DVD was not read in these proceedings. Nor would there have been utility in the Court viewing the DVD for two reasons.
32 Firstly, it is inherently unlikely that an order by Talbot J would be made for work to be done if the work already existed as this would have rendered unnecessary such an order. Order 2(iii) requires that work specified in the plan required to be prepared in order 2(i) be commenced within a certain time. The plan required by order 2(i) also had to be prepared and that had to happen before the work in order 2(iii) could be done in any event. Secondly, there is no need to spend longer on this issue as no matter what the work required to be commenced by order 2(iii) is, order 2(iv) requires that it be complied with in a certain timeframe. That has not been done. Dr Falamaki seeks an extension of time to undertake that work in the amended Notice of Motion. I will therefore focus on order 2(iv) and will not further consider order 2(iii).