294The court has the benefit of both written submissions from the applicant, and Mr Newell's lengthy opening statement.
295The written submissions go into substantial detail arguing the 'grounds' upon which the applicant seeks to set aside the 2004 orders, but, as the focus of this judgment is the respondent's NOM to have the applicant's NOM summarily dismissed, and as the respondent took that step only after the opening statement, what follows in this section of the judgment summarises that oral statement, rather than the detailed written submissions.
296In the final version of his written submissions, dated 11 September 2012, and received on 13 September, Mr Newell says (in par 10):
The circumstances in which the claims in these proceedings were purported to be settled in 2004 involved a fraudulent scheme to shift a drainage burden to the Applicant which had been historically and naturally the burden of no. 37 Calca Crescent ('No. 37') as the downstream property.
297Mr Newell commenced his oral submissions, on 17 & 18 September, by defining what he called "the unique characteristic" of the case (T17.9.12, p17, LL31-37) as:
...the complaint is made not only about what happened, but what happened by reason to what was intended to happen in the fullness of time, but has not yet happened. As matters presently stand, whatever work might have been done hasn't been done, and there is no retaining wall, and I suppose it could be called a stalemate, but in any event the work hasn't been done, and it's fair to say that there's an ongoing environmental problem.
298He then went on to say that the "one thing" which had not shifted for some time about the applicant's case was that the Kings - and others who had become involved "for various reasons over time" - had, at all material times, "an anxiety to shift a drainage obligation to Mrs Young's land from their own land'. He added (Tp17, LL44-46):
How that was viewed in terms of the pre existing drainage system and how the pre existing drainage system was to be used to bring about that outcome has changed a bit but that is essentially the proposition.
299The "half baked" attempts by a former owner of No 37 to establish a habitable space in the "basement room" area, were embraced by the respondents, but required a DA, the consequences of which they intended to evade (see Tp18).
300The "half baked" excavation "must have adulterated the drainage situation that had been put in place at the time of the subdivision", and a carport, established at the rear of the property on the north-eastern corner of the house, also without approval, and in the path of the flow of water, must be "a further unapproved adulteration of drainage arrangements" (Tp18, LL33-39). These works were properly the concern of the Council, but, on the applicant's case, the Council "had stood by and nothing had happened about this unapproved work" (L45).
301The Kings' further work on No 37 (including on its boundary with No 35) commenced about the middle of July 2001, but without any DA being lodged. On the applicant's case, the works involved extension of the wall of the "granny flat" down to the rock below.
302In order to establish the basement room, there had to be "a substantial excavation ... on the boundary" between Nos 37 and 35. An excavation of up to 1.2m was carried out, without development consent, because the Kings intended to "claim that there was a difference in levels between the two properties that was attributable to the build up fill on No 35 by Mrs Young or a previous owner of No 35" (see Tp19, LL18-21). If a DA had been lodged, a Council inspection would have readily revealed the fact "that the levels of each lot were the same at and near the boundary" (Tp19, LL24-25), and "no one has ever explained why Mrs Young would have built up her land [with] fill so as to have a change in levels" (Tp32, LL6-8).
303An excavation would require a retaining wall and something in the nature of an interception trench. In the absence of some agreement to the contrary, they would need to be located on the Kings' land, relatively close to the house - Mr Newell says (Tp20, L27) "inconveniently or unpleasantly close" to the house. "If on the other hand the retaining wall could be positioned on the boundary and the interception trench on Mrs Young's land, No 35, then that consequence could be avoided, there would be plenty of space for a comfortable path which would affect the amenity of the property and not to mention its resale value" (Tp20, LL28-32).
304Such a trench would require periodical maintenance, for which the host landowner would be responsible, and, in the end result, drainage would be required to the rear of the properties, namely into Stanley St, rather than towards the front into Calca Cres. Those drainage arrangements would require Council approval to contemporary standards (Tp20, L43-p21, L11). Substantial costs would likely be involved, because of the uncertainty of the level of the rock, and those costs would always be outside the reach of the applicant (Tp21, L22-33).
305Mr Newell accuses the Council of "flagrantly ignoring its duty, to the detriment of Mrs Young", such that "there must have been something that happened between the Kings and the Council at the time of the purchase of the property" (Tp21, LL35-44). In his written submissions (at par 13) he said that "the facts suggest that the Kings claimed a representation by the Council (whether express or implied) upon which they allegedly relied in purchasing the house". He went on (at pars 14-15) to allege that
... The inactivity of the Council in the face of the Kings' blatantly illegal work (and the Applicant's diligent complaints) suggests that the Council was made to understand that the Kings would sue the Council if they were prevented from realising what they perceived as the value of the basement room and/or made to reinstate the damaged sub-division drainage system in accordance with current standards.
In other words, a stop work order was understood by the Council to be the expected catalyst of threatened proceedings by the Kings against the Council. That is because such an order would have run counter to the compliance representation. In this way, the Kings' agenda became (or became coincident with) the Council's agenda.
306When Mrs Young discovered the excavation in the middle of 2001, she sought the assistance of the Council, and council officer David Page came and inspected, allegedly telling her that there was "nothing illegal going on" (Tp22, L10). When she persisted, he allegedly told the Kings to put in a DA "within a short space of time" (LL12-13). The Kings approached Mrs Young and gave her a document, dated 22 August 2001, which they asserted was a DA. Her case is that its purpose was to intimidate her into agreeing to having a drain on her land, perhaps "to avoid being sued" for negligence (Tp23, LL4-8), but it was merely a letter to the Council, which she later ascertained had never been sent. It allegedly contained an assertion that "excess water is flowing from the southern property, that is her property, that causes damage and health problems in a play area and in the house and generally creates a picture of damage by reason of water ... originating from No 35" (Tp22, LL9-26).
307The applicant asserts that the respondents are claiming that the retaining wall was needed to replace some "tin and wire arrangement", which was not successfully containing the allegedly built-up soil on Mrs Young's land, and "had no drainage whatever" (Tp22, LL32-36). The question of a drainage outlet was not discussed at that time (L47).
308Mr King thereafter alleged that he had excavated only 20cm of his land, and contended that such a degree of excavation was "exempt development", which "made a negligible contribution to the difference in levels between the two properties at the boundary" (Tp23, LL24-32), Mrs Young having built up her land by 60cm (or, as Mr Newell says, in his written submissions, "at least 40cm").
309Mr Newell contends that the allegation that Mrs Young had built up her land was an "entire fabrication" (Tp23, L38), "only developed after there is an excavation" (Tp25, LL36-37)). The strategy was to "fix" Mrs Young with the liability for the damming of surface water on her side of the retaining wall (Tp25, LL45-46).
310Mr Newell builds on that series of allegations to submit (Tp26, LL13-15) "that the Court case was managed on the basis that the question of the surface water and the question of the fill allegation was (sic) left out of sight until the matter could be settled and taken back to the council".
311In any event, because of Mrs Young's continued agitation, the Kings lodged DA 1382 with the Council during September 2001, and Mr Newell contends (Tp27) that it sought approval of three things - a change of use of rooms to create a granny flat, a retaining wall, and "improved drainage".
312The DA inferred that there was already in place an approval for a basement area, but it did not disclose the existence of substantial excavation. The Council-stamped consent plans included a notation on the southern elevation plan "retaining wall to replace pieces of tin behind old fence" (Tp27, L39), and the CC issued at the end of 2002 contained drawings with the notations "masonry fence to hide building fill on 35 Calca" (Tp30, L28), and "dish drain to be inserted subject to removal of fill on 35" (Tp31, L6).
313Mrs Young says that the terms of the CC shows full commitment of the Council to the notion that there was fill on her land, and, therefore, she should be responsible for surface water. By issuing the consent on 5 February 2002, with the stamped drawings, the Council committed itself to an account of matters contrary to both the truth of the position and the best interests of Mrs Young, setting the stage for her to become responsible for the damming effect of the retaining wall. "There was no way the drain could go on No 37 because the footing was encroaching on No 35" (Tp29, LL42-43). A paper trail was later constructed as though the footing were not a footing for a retaining wall, but one for perhaps a fence (Tp29). The Council would ultimately say that the excavation was at 0.8m below the surface of Mrs Young's land - the total of Mr King's 20cm excavation, plus 60cm of fill on Mrs Young's land (Tp29). If fill were removed, Mr King might be responsible for a dish drain, but if it were to stay, and a retaining wall had to be built to retain it, Mr King would not be responsible for the surface water (Tp31).
314It is her case that the retaining wall was designed to support "a recent and substantial excavation" (Tp28, L21), which had not been the subject of any DA, nor any building certificate application. A concrete massed footing was built, encroaching on the applicant's land, and it is her case that it was the respondents' intention that she should understand that that footing had been approved by the Council, and was there to stay, and that she had no alternative, if she were to drain her land, but to agree to a having drain on her land.
315Mrs Young frustrated her alleged opponents' scheme by declining to agree to a DA involving No 35.
316It was at about the time of the issuing of the CC that Mrs Young retained Hones and Hemmings. She complained that the consent required a building certificate application to be made for unspecified works that had been carried out, and she was unable to understand why a CC had been issued referring to a fence when the consent to which it related referred to a retaining wall.
317Despite her complaints about the Council, the lawyers advised against joining it in the proceedings they were commencing. Mr Newell concedes that not all of Mrs Young's complaints could be accommodated by judicial review proceedings in this court, but he alleges that some of the real issues in her predicament were deliberately side-stepped. For example, her lawyers advised her that the principal problem was the question of sub-surface water, rather than surface water (these allegations against Hones are developed at Tpp33ff). The expert reports put forward solutions for the drainage of sub-surface water, but do not specify an outlet, although the need for one is acknowledged. Mr Newell said (Tp35, LL36-38): "there couldn't have been a substantial dispute between the parties if there wasn't a problem about the outlet". Mr Newell suggests that Mr King at that time considered himself "untouchable by the institutional framework", because Mrs Young's lawyers "had shown no intention of advancing a case in her interests and he knew he had Council under control" (Tp36, LL36-43), and he went on to develop (at Tp37) the argument that there was collusion among all the named parties "for the purpose of achieving the outcome" (Tp37, L13).
318After the proceedings were commenced on about 14 April 2003, the Kings (query on 28 April) put in what they called "drainage", which was essentially a weep hole arrangement associated with "the bit of half-baked retaining wall that they had built, a mass (sic) footing with a layer of blocks across the top. And they then relied upon that drain as the basis of the way they would precede (sic) with the Court case" (Tp38, LL16-21).
319The Kings ran the case in the full knowledge that they had no proper defence. That was the subject of some criticism in McClellan J's judgment, and (Tp38, LL37-39) "there needs to be an explanation and a reason for how they could expose themselves to those kinds of costs without having special knowledge that the case would not be run in a legitimate manner" - the Council was not joined; the Points of Claim side-step the real issue of the extent of excavation; the change of use proposition is based on a false assumption, and so on.
320Mr Newell then made several allegations (Tp39) about the state of mind of the Kings - about what they "must have known", or "what they must be taken to have known", or what they "knew". For example, they must be taken to have known that the manner in which the proceedings were run by the applicants lawyers did not bear scrutiny; they put forward no remediation plan to avoid demolition; the method of settlement of the case was preordained before the expert reports were finalised (see Tp40); the strategy was to cloak the "settlement" with the benefit of "advocate immunity" (Tp41, L18-19); the outcome was "illusory", or perhaps "farcical", "because it could never be implemented and it was obvious to the people I've just [enumerated] that it could not be implemented" (Tp42, LL21-24); the massed footing could never get a building certificate. (The building certificate application of 13 December 2003 was never progressed - "it was simply a device to cause the Court to understand that in fact the mast (sic) footing was the subject of the ... settlement so far as it was framed by the Exhibit A obligations" (Tp42, LL33-6)).
321Mr Wright (Tp41, LL30-50) pressed Mr Newell to clearly state what he was putting against the respondents, in respect of the allegedly pre-arranged result of the litigation, and Mr Newell responded (Tp42, LL3-12):
Well the answer to that is that I previously said the matter was pupeteered by the council, in particular the council's lawyers who oversaw that matter. The council was not a party but had a watching brief and took a considerable interest in the proceedings through its lawyers, Wilshire Webb. The parties to the agreement, which is inferred from conduct - and I'll have to make a submission about that, are the respondent's lawyer, Mr Griffith's, Mr Hones, for the applicant, Mr Hemmings for the applicant, and the experts, Mr Springett, Mr Perrons (sic) and Mr Warwick Davies being the experts, they were all conscious of and engaged in conduct which facilitated the outcome, which involved the settlement at court on 16 February 2004.
322Mr Newell contended that the respondents were "parties to the agreement" (Tp42, L49), and that the settlement was "mumbo jumbo calculated to support the apparent need for the lodgement of a DA with the Council" (Tp43, LL9-10). Its purpose was to cause Mrs Young to give her consent for a DA to be lodged over No 35, so that the Council would be empowered to investigate her land, and "to facilitate the discovery that she was responsible, by reason of the retaining wall now made necessary, for that retaining wall, in whole or in part but sufficiently to be responsible to have a substantial drainage obligation, and there by to be required to construct a drain to Starkey St" (Tp43, LL16-22). Hones put a document to Mrs Young which Mr Newell says Wilshire Webb invited Hones to create.
323Mr Newell then went on, however, to concede that Mr King was (Tp44, LL7-10) "not as involved as the council and the lawyers in outcomes although he's a beneficiary of them and he knows exactly where they have to go, he's able to sit back and not actually get involved in some of the machinations that are required".
324The history of the matter following the 2004 court case is of a continued effort to get Mrs Young to give her consent to a DA over No 35. There were some developments with the format of the Kings' DA, because of the involvement originally of engineer Bennett and then engineer Boyden, and some new council officers (Tp44). Some of the drawings show a footing of 0.8m, when the massed footing was known to be at 1.2m, and Mr Newell submits (Tp45, LL3-15)
... the plan is to simply sidestep any question about the massed footing being at 1.2 or it being the actual foundation for the retaining wall that the paper trail will show was put in, and I come back to this your Honour, if the massed footing is not going to stay or is not going to be the subject of the building certificate application, the settlement at Court was a conscious fake. It was a nonsense. It settled, exhibit A is framed on the basis that Mrs Young and the Court were to understand that that massed footing would be fixed up in two respects, that the drainage would be adjusted, a building certificate would be obtained and then a retaining wall would be built pursuant to a further DA to go up on the foundations of that footing, and the evidence shows that nobody had any intention - and when I say nobody, I mean the Kings, the council, Mr Hones, none of those people had any intention of that massed footing staying or playing a role in the resolution of the matter.
325The day after the settlement (ie 20 February 2004), Hones wrote to Wilshire Webb urging that, in consequence of McClellan J's judgment, the building certificate then under consideration should not be issued. Mr Newell developed this into some complex component of the overall plan (Tp45).
326On the morning of 18 September 2012, Mr Newell continued with his opening submissions, and returned, firstly, to the fact that there was no existing approval for a basement room. He also mentioned again the failure of the consent to specify work that was excluded (condition 3), in the sense of construction work done prior to the granting of consent. By failing to specify what work was excluded, the Council avoided stating whether it was proceeding on the basis of an excavation that required prospective regulation by a building certificate, or on the basis that there was no excavation that would require a building certificate (Tp49). That reserved for the Council the ability to later claim there was no excavation and that they had none in contemplation when imposing Condition 3 - "that's part of the course of unacceptable conduct by the council", constructing a "reality" on its file (Tp49, LL39-41).
327He then submitted (Tp50, L15-p52, L50):
The applicant's position in relation to the respondents is that originally the respondents created the circumstances which shaped and made the collusion necessary. They created the false allegation of fill on Mrs Young's land, and they created the circumstance in which the council was married to the notion of fill on Mrs Young's land and was thereafter unable by reason of its conduct, in particular the instruments which it issued to explain its conduct.
So that the position is that the respondents clearly understood the dynamics of what was occurring because they had fore knowledge of the very predicament the dynamics would address.
... from the time proceedings were commenced, the problem became the problem of the council in such a way, it's not necessary to assume the [active] involvement of the respondents from that point because the council had a serious predicament and it's certainly not the respondents who had any influence over the legal representatives of the applicant. The case against the lawyers, while it's in my submission inescapable, is in its nature a circumstantial case ...
[There] is no need to assume forensically that they were actively involved in the conspiracy from the time that the council owned the problem caused by the commencement of the proceedings. That was a very serious problem for the council. It was critical as they could not explain their conduct. On the one hand it was critical for them not to be joined as a party to the proceedings, and it was critical that the proceedings be managed so as to sidestep the council's misconduct.
The respondents in the events which occurred were beneficiaries and we will say knowing beneficiaries of the course of conduct by the applicant's lawyers, but because it is not necessary to assume in the known circumstances that they were active participants from the time the proceedings were commenced, and because their own lawyer, Mr Griffiths, it is suggested was acting in the interests of the council even more than he was in the interests of Mr King, so that there was a commonality but there's still an opposition of interest between Griffiths and King. It would not be appropriate to consider that the respondents are active participants in what is inferred by circumstantial evidence for the purposes of the management of the proceedings, in particular the trial.
However, from the time that the undertaking was accepted, the respondents did perform an act in accepting the undertaking which involved them actively in achieving the outcome that the council sought, that the giving of the undertaking to do work which was going nowhere and which was never in fact going to be done, was a necessary step in advancing the agenda pursuant to which the council would get control of the matter and would impose obligations on Mrs Young.
...
... the respondents gave the undertaking in bad faith, with no intention of performing it, and in the knowledge that they would not perform it and that that matter would not be brought to the attention of the applicant by her solicitors. So in the giving of the undertaking itself, there was the necessary common purpose and parallel conduct for Mr and Mrs King to be involved in a conspiracy. At the same time, the claim against Mr King is sufficiently made out in that he understood that he knew or was on notice of sufficient facts and he seems to have been - it's my submission he was on notice of more than sufficient facts to know that the agreement - it was unconscionable to take the benefit of the agreement into which Mrs Young was [purportedly] induced to enter for the purposes of the settlement of proceedings.
...
... the Kings knew that the undertaking was a sham. They couldn't fail to know the undertaking was a sham. The reason for that is that the Kings were present in Court, they knew what exhibit A said, they understood that the undertaking exhibited the peculiar circumstance that it was to be achieved by disconnecting the drain that was draining to the front of the property and taking it to the rear of the property.
...
... the undertaking was given in the full knowledge that the things undertaken to be done would never be done, in this particular case for the mundane reason that he purported to believe it had already occurred. And of course Mr Springett's conduct is difficult to explain, to put the matter charitably, because he participated in the conclave and prepared a report on the conscious basis that the property drained to the front.
328Springett was an engineer retained by the respondents and participated in the conclave. McClellan J referred to him in judgment No 1, at [26]-[33], and I referred to him in judgment No 2, at [33] and [35]. (Those paragraphs are set out above in [54] and [49] respectively). Springett's letter to Pikes, dated 5 January 2004, is relied upon by Mr Newell and the applicant (see 'grounds' (5), (11), and (13), summarised in [281] above).
329Against the Council, Mr Newell went on to allege (Tp52, LL34-50) that it "prepared the consent on the basis to insinuate that drainage would be to the front", as drainage to Starkey St at the rear would require an easement, and:
It was not intended that Mrs Young understand at that time or maybe ever, that when a drainage arrangement was in place, whether it was her obligation or that of the Kings, it would involve a very substantial project in draining to Starkey Street.
To prevent her knowing that, the consent was drafted in such a way as to insinuate the drainage to the street, Calca Crescent, was in contemplation.
330She then asked Council to produce a survey showing that drainage to Calca Crescent was possible. Council decided to pander to her understanding (Tp53, LL14-15), and produced Lethbridge's 2002 survey, which, it is alleged, King had provided to Council.
331Mr Newell then returned (at Tp54) to the Springett letter of 5 January 2004, which Kings attached to their post-settlement DA, in purported compliance with their undertaking, "to deal with the problem that the Council had originally insinuated that drainage would be to Calca Crescent" (LL23-24). Following the conclave, "somehow the drain to Calca Crescent had to be disconnected from the stormwater" (LL25-26), and Mr Newell says (LL31-37):
... the experts in fact had to mandate drainage to the rear because they knew that there could not be drainage to Calca Crescent, but they did not want to say that because they did not want to underscore that the whole notion of drainage to Calca Crescent had been a false proposition for the purpose of misleading the applicant. So a pretext had to be developed in the context of the undertaking to cause the undertaking to involve connecting to the rear - draining to the rear.
332Mr Newell says that the Springett letter, which predated the 2004 hearing, was "contrary to the basis on which [the respondents] ran the case", but accommodated Council's need not to consider whether the drain would operate to the rear or to Calca Crescent "because it's presented as already draining to the rear", and whether it should, in approving such an arrangement, insist on surveys, nomination of outlet etc (LL40-8).
333The DA drawings "created the impression it already existed " (Tp55, L1), so that Mrs Young would interpret the proposal "as proposed work as opposed to existing work while the Council was to interpret the work as existing so that it had no duty to perform... The applicant could hardly be told that the work had already been done because she'd wonder what she ran the case for" (Tp55, LL4-25).
334Mr Newell says that the respondents had no intention of implementing the DA, but it accommodated "the Council's difficulties in managing their (sic) file so as to avoid their duty" (LL27-30). The massed footing, "which is ... the foundation for the work in Exhibit A, was intended as a matter of the Council's paper trail to disappear", rendering the undertaking "an entire sham", which gave Mrs Young "nothing whatever ... apart from the dismissal of proceedings". Once the DA put the matter back in Council's hands, hopefully Mrs Young would give her consent, and Council could deal with her land (LL30-44).
335Mr Newell then turned his attention again (at Tp56) to Hones's letter of 20 February 2004 to Wilshire Webb, which was "published to Mrs Young", and (Tp56, L36-p57, L40) had been:
... drafted to suggest to the applicant that she's somehow been successful on the one hand, but on the other hand Hones lawyers are providing a pretext to the council not to further consider or issue the building certificate on which the whole undertaking was premised. Without a building certificate for the massed footing and the drainage arrangements associated with it, the retaining wall could never be built on the foundation of the massed footing. So that the whole rug was pulled out from the undertaking within 24 hours ...
... the agenda was that the massed footing should disappear without the applicant understanding that that was an intended matter ... facilitated by Mr Boyden, 'who submitted drawings with the revised DA, which were' [contrivedly] ambiguous, ... in order to create the impression, on the one hand, that the footing is staying, but can be read just as plausibly to later record that the footing had disappeared as a part of the proposal. There's a notation which reads "Compendiously demolished footings and associated drainage pipe work to grade to rear masonry block retaining wall and drainage pipe to be constructed. The choice of words I say is ambiguous in that it can be read and it was read by the applicant as meaning that the footing would be demolished to permit grading to the rear as contemplated by exhibit A, only insofar as necessary to permit grading to the rear. On the other hand it could be read as meaning that the footing referred to in exhibit A and the associated drainage would be entirely demolished. So, what the council would have on its file is a record showing that as a matter of expressed process and proposal that footing disappeared. The council would not have to explain why it wasn't involved in considering whether that footing should disappear because it's been described on the drawings by Mr Boyden as a fence.
Now, the purpose throughout - at various points in these proceedings of describing the footing as a footing for a fence, that description being offered by variously Mr King or his representatives from time to time, is of course to affix to it a label which would convey that it was exempt and would justify conduct on the part of the council, which would justify the council not giving consideration to whether it should be demolished ...
The fact that the footing was to disappear and it was to be labelled as - called a fence footing for the purpose of its disappearance was something that had been prefigured by the conduct of certain parties on behalf of Mrs Young.
336Mr Wright pressed Mr Newell to explain what he meant by the footing "disappearing" - was it disappearing "in fact", or "from the record"? Mr Newell replied (Tp57, L46-p58, L5):
We don't know, we know that it was to disappear from the file and the file was to say it was gone. And I expect that it would in fact have disappeared, all we know is the file was written up on the basis that the narrative called for it to disappear or to have disappeared.
Now, that consequence did not just happen by reason or at the time that the Boyden drawings were submitted because, as I was about to say, that outcome was prefigured by the conduct of Mr Hemmings and of Mr Davies and the preparation of the cross sections which he annexed to his report of December 2003.
(It was Warwick Davies who called the footing a "fence" in "ambiguous" drawings, prepared so that Council could justify its conduct - Tp58, LL10-15).
337Mr Newell then (Tp58) reminded the court that the words "after consideration by the Council" had been deleted from the initial wording of the 2004 undertaking, so as to convey, he says, that the Exhibit A works could be undertaken without any DA being lodged. When the Kings commenced work on 5 March 2004 on that premise the matter was brought back to McClellan J on 8 March, and amendments were made (see [59] - [60] above).
338Mr Newell submitted (Tp58, L45-p59, L4):
...the undertaking was not only given in bad faith in that there would be no substantive outcome as a result of it for the benefit of Mrs Young, but that it was also framed in a direct manner with a view to permitting the council to conduct itself in the manner that it wanted to - that it needed to for the purpose of sidestepping the predicament that it had created for itself and to facilitate the process of shifting a drain to Mrs Young's land. The central proposition is that the council would be prepared to believe or accept that there was fill on Mrs Young's land, and therefore would cooperate in imposing an obligation on her for drainage, which was justified by reference to that fact.
339Mrs Young was never given the usual DA form, upon which to signify her consent, only a collateral document (Tp60, LL21-3). When it was clear she would not consent, and Hones did not explain to her what precisely was proposed, a couple of meetings were arranged by Council to discuss the DA. These were not held until September 2004, and then February 2005. Council was represented at them by a Mr Hoffman (Tp61). Mr Newell records that Mrs Young confronted Boyden, and that Perrens took issue with the Boyden drawings. Those exchanges confirmed for Mrs Young that the footing was actually at 1.2m, not 0.8m, but there was little interest, on the part of the others, in acknowledging that fact.
340Minutes were prepared of the February 2005 meeting, but Mr Newell alleges that Dr Perrens sent different versions of them to the Council and Mrs Young. He submitted (Tp62, LL28-37):
The copy that went to Mrs Young said that no dish drain would be necessary. Whereas the copy that he sent to the council made no reference to a dish drain not being necessary your Honour, and the significance of a dish drain of course is that if Mr King is going to drain the surface water in accordance with Mrs Young's known expectations, then there would have to be a dish drain.
...
The minutes sent to Mrs Young stated that a dish drain would not be necessary. The version that was sent to the council omitted that statement.
341Mr Newell went on (Tpp62-5) to deal with the refusal of consent on 30 June 2006, the various offers of settlement made in the proceedings on and after 9 May 2003, the controversy that has arisen over the conclave, and the various alleged failures of Hones and Hemmings in their dealings with Mrs Young, especially regarding the 2004 settlement (which she says was, in some respects, contrary to express limitations she placed on their authority), and Exhibit A. In his written submissions (at par 71), Mr Newell says that "Exhibit A is systematically drafted to advance the elements of the Agenda - This could only happen if all of the lawyers and experts were complicit". It is (at par 72) "dishonest", "deliberately vague and evasive", and (par 76) was "understood by both lawyers to be a sham" (details in pars 75-77). He says (in par 78):
The conduct of the experts generally must have been orchestrated by both lawyers to have achieved the matters consistent with the Council Agenda. In particular, it cannot be said that the experts were on a frolic of their own in effecting the machinations for which they were responsible.