Land and Environment Court New South Wales

• Medium Neutral Citation: North Sydney Council v Bewley [2014] NSWLEC 145
• Hearing dates: 14 August 2014
• Decision date: 14 August 2014
• Jurisdiction: Class 4
• Before: Preston CJ

Decision

(1) Grants leave to the applicant to discontinue the proceedings pursuant to r 12.1 of the Uniform Civil Procedure Rules 2005.

(2) Orders each party to pay their own costs of the proceedings.

• Catchwords: PRACTICE AND PROCEDURE - civil enforcement proceedings - applicant sought leave to discontinue - leave required as respondent did not consent to discontinuance - respondent did not oppose grant of leave - leave granted - notice of discontinuance filed; COSTS - discontinuance of proceedings - civil enforcement proceedings to enforce local government order to demolish retaining wall and remove tree - discontinuing applicant sought order that respondent pay costs of proceedings - respondent sought order that applicant pay costs of proceedings - default order under civil procedure rules that discontinuing applicant pay costs - whether Court should order otherwise - onus on discontinuing applicant - whether respondent's conduct prior to or during proceedings unreasonable - respondent's conduct prior to proceedings not so unreasonable as to justify costs order - respondent did not surrender or capitulate - supervening event made prosecution of proceedings futile - proper exercise of discretion to make no order for costs - whether Council should receive order for costs from date of offer to discontinue - respondent did not act unreasonably in not accepting offer - appropriate to order otherwise than default order - each party to pay own costs
• Legislation Cited: Local Government Act 1993 ss 124, 628(2); Uniform Civil Procedure Rules 2005 Pt 12 r 12.1
• Cases Cited: Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424
• Category: Principal judgment
• Parties: North Sydney Council (Applicant); Mrs Roslyn Bewley (Respondent)
• Representation: Mr A M Pickles (Barrister) (Applicant); Ms A Pearman (Barrister) (Respondent); Sparke Helmore Lawyers (Applicant); Winston Readford Solicitors (Respondent)
• File Number(s): 40947 of 2013
• Publication restriction: No

Judgment

1 North Sydney Council brought civil enforcement proceedings seeking a declaration that Mrs Bewley, the owner and occupier of property at 38 Shellcove Road, Kurraba Point, has failed to comply with an order under s 124 of the Local Government Act 1993 ('the Act') requiring the removal of a Ginkgo tree and demolition of a brick retaining wall in the front yard of her property, in contravention of s 628(2) of the Act, and an order that Mrs Bewley comply with the s 124 order by taking the action specified in the order.

2 The Council today sought leave to discontinue the proceedings under Pt 12 r 12.1 of the Uniform Civil Procedure Rules 2005 ('the UCPR'). Leave of the Court is required because Mrs Bewley did not consent to the Council discontinuing its proceedings. However, Mrs Bewley did not oppose the Court granting leave to the Council to discontinue the proceedings, although she sought an order that the Council pay her costs of the proceedings, in conformity with r 42.19 of the UCPR. I granted leave to the Council to discontinue the proceedings and the Council thereupon filed a notice of discontinuance. The only issue remaining in the proceedings was costs.

3 The Council sought an order that Mrs Bewley pay its costs of the proceedings, or in the alternative, from 13 May 2014 when the Council made an offer to Mrs Bewley that it would discontinue the proceedings on the basis that each party pay their own costs, which offer was not accepted by Mrs Bewley. Mrs Bewley sought an order that the Council pay her costs of the proceedings.

4 The proceedings are in class 4 of the Court's jurisdiction and r 42.19 applies to such proceedings. Rule 42.19(2) provides for a default order that a discontinuing plaintiff is to pay the defendant's costs, but gives the Court power to order otherwise. The Court can only order otherwise if it makes a discretionary decision to depart from the default costs order provided for in r 42.19(2). This places an onus on the discontinuing plaintiff to make an application for an alternative costs order and to establish the positive ground or good reason for departing from the ordinary course. The discontinuing plaintiff must establish the factual basis for the alternative costs order and bears the burden of persuading the Court that an alternative costs order is appropriate: Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424 at [21].

5 In support of an order that Mrs Bewley pay the Council's costs, the Council relied on what it alleged was the unreasonableness of Mrs Bewley's conduct prior to the commencement of the proceedings, and in her conduct of the proceedings.

6 In relation to the conduct prior to the commencement of the proceedings, the Council alleged that Mrs Bewley's conduct precipitated both the issuing of the s 124 order as well as the bringing of the proceedings to enforce that order. The Council alleged that Mrs Bewley could have avoided both the giving of the s 124 order and the commencement of the proceedings if she had earlier provided the engineer's report that she later provided to the Council in late February 2014. That engineer's report identified that the cause of the displacement of the front boundary retaining wall was hydrostatic pressure in the retained earth behind the wall and not the Ginkgo tree, and that installation of weepholes in the base of the wall to improve drainage would relieve the hydrostatic pressure.

7 The Council submitted that if that engineer's report had been provided to the Council in response to its earlier order requiring the submission of an engineer's report, the Council would not have issued the s 124 order requiring the demolition of the retaining wall and the removal of the Ginkgo tree or brought the proceedings to enforce that order. This argument of the Council requires a narration of the key events leading up to the litigation.

8 On 8 February 2013, a Council Compliance Officer, Mr Clint Mills, inspected the front boundary retaining wall and noticed a "significant movement" towards the Council's footpath. He opined that "the most likely result of the movement is due to a large tree that is located directly behind the retaining wall." He considered that "at the time of the inspection the retaining wall appeared to be stable", however he recommended that the Council issue an Order No 21 under the Act seeking that an engineer formally inspect the front retaining wall.

9 On 11 February 2013, the Council's Tree Preservation Officer, Melanie Hamilton, inspected the Ginkgo tree and advised that it was "in a healthy and stable condition displaying no indication of imminent collapse".

10 On 12 February 2013, the Council issued an emergency Order No 21 pursuant to s 124 of the Act. The emergency order required Mrs Bewley to:

1. Engage the services of a practising qualified structural engineer to investigate and report on the structural integrity of the dilapidated brick wall, located at 38 Shellcove Road, Kurraba Point, adjacent to the footpath. The report shall identify any areas of the wall that are structurally inadequate and that may threaten the safety of any person(s) within the vicinity of the wall. The report is to include a method for the safe removal of the wall, with consideration to be given to the Ginkgo tree located within close proximity behind the wall.

2. Submit the required report of the practising qualified structural engineer to Council."

11 The reasons for the emergency order were stated to be:

1. An inspection on 8 February 2013 at 38 Shellcove Road, Kurraba Point, undertaken by Council's Compliance Officer, Clint Mills, revealed the following:

(a) The brick boundary wall is so dilapidated as to be prejudicial to the occupants of the property or to persons utilising the footpath. The close proximity of the Ginkgo tree to the rear of the retaining wall was noted and should be taken into consideration in addressing the safety concerns.

(b) As a result, Council considers that if any further dilapidation occurs it may be a public safety risk."

12 The time for compliance was stated to be within 72 hours.

13 On 19 February 2013, another Council Compliance Officer, Mr Dane Johnson, and the Council's Team Leader, Mr Long Huynh, inspected the wall. The stated reason for their inspection was that Mrs Bewley had not complied with the emergency order to engage an engineer. They observed that the wall had "not deteriorated any further since last inspection." Mr Huynh considered that the wall was stable enough to allow negotiations to continue with Mrs Bewley.

14 On 19 February 2013, Mr Johnson spoke on the telephone with Mrs Bewley. She said she had not sought an engineer and was reluctant to do so. She asked for an extension of time as she had limited financial capacity to pay for an engineer. Mrs Bewley was given a two week extension to 5 March 2013.

15 On 5 March 2013, Mrs Bewley rang the Council to advise that she was awaiting quotes and would advise of further updates shortly.

16 On 11 March 2013, Mrs Bewley again rang the Council to advise that she was awaiting the engineer's report to arrive. On 11 March 2013, Mrs Bewley wrote to the Council. She said:

I refer to your letter dated 12 February 2013, regarding the brick wall on the street frontage of my property. I have consulted with a structural engineer, arborist, and several landscapers and builders. The opinion of the structural engineer (on seeing photos of the wall), was that a removal and replacement of the wall would only be feasible if an arborist stated that the tree would be stable without the support of the wall.

The arborist I consulted (see attached letter) was of the opinion that the tree was relying on the wall to some extent. Both agreed that only two scenarios were realistic:

1. The removal of the Ginkgo tree, following by fairly standard wall construction by a landscape gardener or similar.

2. In order to retain the Ginkgo tree, Council would need to give easement to build the wall further out onto the footpath, to give the tree a wider base for its roots. A structural engineer would then need to design the wall to ensure the same problem does not reoccur.

The three landscape gardeners who inspected the wall were all of the opinion that they would need an engineer to design the wall for them if the tree was to remain. None of those consulted were of the opinion that there was immediate risk of the wall falling over, however they were unanimous that it was inevitable at some point in the future.

I prefer to keep the keep the tree (given its age and aesthetic value), however I understand this is likely unrealistic. Please respond, ideally either giving permission to remove the tree, or easement to build a wall further out.

Attached to Mrs Bewley's letter was the arborist's letter which said:

I have recently been contacted by Roslyn regarding emergency Order No 21, sent on 12 February 2013. Roslyn has sent me a copy of this order and has asked me to comment as I had previously inspected the Ginkgo biloba, 6 February 2013, while I was doing other works at the premises. Roslyn asked me at the time what could be done to rectify the problem.

I stated that the tree was pushing the retaining wall over with its root system. The problem is that the tree has been growing its entire life with that wall supporting it. Its root system on the roadside has never been able to spread. Its root development has been restricted by the retaining wall so it will have grown in the only direction possible which is laterally along the wall.

The tree has pushed the wall over and vice versa the wall is supporting the tree with exactly the same amount of force.

In my opinion there are only two ways to fix the problem.

Either allow the wall to be rebuilt further out onto the footpath or remove the tree and replace the wall. The first option is not without some element of risk as the existing wall will still need to be removed and therefore take away some of the tree's support.

The wall cannot be removed and put back along its original alignment without the removal of a substantial percentage of the root system on the roadside. This will certainly lessen the tree's stability.

I think that in order to fix the wall the tree will need to be removed."

17 On 21 March 2013, Mr Johnson emailed Melanie Hamilton saying:

It would appear the tree needs to be removed to address the safety issues and to allow for the wall to be rebuilt. Can you advise if this is permissible so I can construct an order to demolish the Ginkgo tree.

18 On 22 March 2013, Melanie Hamilton responded to Mr Johnson saying, in part:

The Ginkgo biloba tree is a poorly located specimen that is causing structural damage to the front retaining wall with its root system. When the wall is repaired the tree will become unstable due to the lack of support/soil on eastern side of the tree where the wall is located.

19 On 28 March 2013, Mr Huynh wrote to Mrs Bewley requesting her to apply for a permit under the Council's tree preservation order to remove the Ginkgo tree. The Council's letter relied on the supplied arborist's report.

20 On 16 April 2013, Mrs Bewley partly completed the tree removal/pruning application form that the Council had sent to her. In the section "Nature of Application", Mrs Bewley ticked neither of the boxes for "remove" or "prune" and her description of what she wanted approved by the Council did not ask for the removal of the Ginkgo tree at all. Instead it said,

I would like the treatment of the tree to be considered by that section/those people most qualified to make decisions about this sort of tree in the hope that it can continue to be of benefit to the community.

21 Notwithstanding that no proper application for the removal of the tree had been made, the Council issued a tree preservation order permit on 18 April 2013 for the removal of the Ginkgo tree.

22 On 13 May 2013, the Council issued a Notice of Intention to issue an order pursuant to s 124 of the Act. The purpose of giving the Notice of Intention was to give Mrs Bewley an opportunity to make representations as to why the Council should not give an Order No 21 at all or in the terms notified. Mrs Bewley was given 14 days to make representations. In the letter enclosing the Notice of Intention the Council said:

Council advises you that in the interests of public safety, the removal of the Ginkgo tree and the demolition of the retaining wall located on the street frontage of the property is now required.

The reason that the brick retaining wall and the adjacent Ginkgo tree are required to be removed is that an inspection of the wall revealed the retaining wall was cracked, dilapidated and appeared to be unstable with a significant lateral lean towards the adjacent public footpath. Council is concerned that if further dilapidation occurred there may be a public safety risk.

Council has erected protective barricading in front of the retaining wall. Council requests you leave the barricading in place until the required works are complete.

As such, please find attached a Notice of Intention to issue an Order No 21, under s 124 of the Local Government Act 1993. The Notice details the requirements of the Order No 21 once it is issued.

23 The terms of the proposed order were that Mrs Bewley must:

1. Engage the services of a practising arborist to supervise the removal of the Ginkgo tree located in the front yard of 38 Shellcove Road, Kurraba Point; and

2. Demolish the brick retaining wall located adjacent to the public footpath on the front boundary of the property.

24 The reasons for the proposed order were stated to be that:

An inspection on 4 April 2013 at 38 Shellcove Road, Kurraba Point, undertaken by Council's Compliance Officer, Dane Johnson, revealed the following,

1. The inspection revealed that the brick retaining wall and a partial section of an adjoining sandstone wall were cracked, dilapidated and appeared to be unstable with a significant lateral lean towards the adjacent public footpath. Council is concerned that if further dilapidation occurred there may be a public safety risk.

2. The information contained within a report you submitted to Council on 20 March 2013, written by AAA Advanced Tree Surgery and dated 10 March 2013, indicated that the removal of the Ginkgo tree is necessary to allow the retaining wall located on the front property boundary to be demolished.

3. As a result of the reasons above, Council is concerned for the safety of the public using the adjoining public footpath of Shellcove Road, Kurraba Point.

25 The time in which the work would be required to be done was 21 days from the date of the proposed order.

26 On 3 June 2013, after the period of time in which Mrs Bewley was required to make representations on the Notice of Intention to issue an Order No 21, Mrs Bewley met Mr Johnson at her property. Mr Johnson advised Mrs Bewley that the wall was "now a safety issue and one that Council believes is genuine". A part of the discussion was as follows:

Roslyn advised that the reason the structural engineer she engaged did not supply a report was that the engineer had discussed the wall and tree with an arborist and that it was decided that the arborist's comments are more important than the engineer's as the problem appeared to be more related to the giant tree's proximity to the wall.

I advised Roslyn that from the report she supplied I had discussed the representations with my Team Leader and it was agreed to issue a Notice of Proposed Order to remove the tree and the wall which Roslyn could make representations to.

I advised Roslyn we received no representations to the Notice and Roslyn advised she was too scared to open the mail from me, so she only opened it the other day. Roslyn wanted to speak to someone about the Notice which had now expired so she came to Council and arranged a meeting with Council's landscape officer, Brian Smith.

I advised Roslyn I had spoken to Brian and he advised the most obvious way to solve the problem was to remove the tree, however he advised she was questioning the encroachment option still.

I advised her that the Council believes this is a safety issue which requires immediate action and based on the site inspections and arborist's report the tree and wall required demolition.

27 On 5 June 2013, the Council issued the Order No 21 under s 124 of the Act. The works required for removal of the Ginkgo tree and demolition of the retaining wall were in the same terms as had been notified in the Notice of Intention to issue the Order No 21, as were the three reasons given for the order. The time period, however, was changed to be 28 days from the date of the order (5 June 2013).

28 On 8 July 2013, Mr Huynh wrote to Mrs Bewley advising that the compliance period with the Order No 21 had expired, that a site inspection on 5 July 2013 confirmed that the terms of the Order No 21 had not been complied with, and if the terms of the order were not satisfied by 17 July 2013, the Council intended to commence regulatory action against her which would include fines and legal action.

29 On 17 July 2013, Mr Huynh again wrote to Mrs Bewley. He noted that Mrs Bewley has still not complied with the terms of the Order No 21 and continued:

Council considers the current condition of the brick retaining wall in addition to the location of the Ginkgo biloba tree to the wall, is such that any further dilapidation of the retaining wall may result in the damage to infrastructure and is a public safety risk. Council believes the retaining wall is in such poor condition that it be deemed prejudicial to the local residents utilising the road and footpath in front of 38 Shellcove Road, Kurraba Point.

30 He advised that an offence under the Act had occurred and he enclosed a penalty infringement notice for not complying with the order. He advised that if Mrs Bewley did not take the necessary action within seven days of the letter to remove the Ginkgo tree and the brick retaining wall, the Council would instigate legal action.

31 On 26 September 2013, Mr Johnson inspected the retaining wall and noted that, "Measurements taken at the inspection showed wall had not moved by any obvious amount and if any would be by a few millimetres only."

32 On 22 November 2013, the Council's solicitors, Sparke Helmore, wrote a letter before action advising that if Mrs Bewley did not comply with the terms of the order by 29 November 2013, the Council would commence civil enforcement proceedings in the Land and Environment Court seeking an order requiring her to comply with the terms of the order.

33 On 27 November 2013, Mr Johnson conducted a further inspection of the retaining wall. This revealed:

No further lateral movement towards the footpath had occurred since my last monitoring visit. I was able to determine that no lateral movement had occurred by checking the location of a red crayon mark that I discretely placed on the wall during my previous visit. I applied force to the wall and no wall movement was apparent. At the time of inspection no observation was apparent to suggest that the wall was in an imminent state of collapse.

34 On 4 December 2013, the Council commenced by summons these civil enforcement proceedings.

35 The Council submitted that this chronology revealed that Mrs Bewley has had many opportunities to make representations and put forward engineering advice that the displacement of the retaining wall was not in fact being caused by the Ginkgo tree, and that the retaining wall and the Ginkgo tree did not need to be removed. As I have noted, Mrs Bewley did subsequently engage a structural engineer, Mr Verinder, who provided a report identifying hydrostatic pressure in the soil mass behind the wall, and not the Ginkgo tree, as the cause of the displacement of the wall. He opined that, if properly drained, the retaining wall was not in imminent danger of collapse. Accordingly, he recommended that "immediate steps should be taken to core a series of weepholes in the base of the existing brick wall to improve the wall drainage".

36 However, Mrs Bewley did not provide this report of Mr Verinder to the Council until late February 2014, after the Council had commenced the proceedings.

37 The Council submitted that, without knowing what the engineer later advised, it remained of the view that the Ginkgo tree was the cause of the displacement of the retaining wall and that the retaining wall could not be demolished without destabilising the Ginkgo tree, and hence the Ginkgo tree also would need to be removed. In this belief, the Council considered it was left with no alternative but to, first, issue the Order No 21 and then, when that was not complied with, bring civil enforcement proceedings.

38 Ms Pearman, on behalf of Mrs Bewley, argued that Mrs Bewley did not act unreasonably in not providing at an earlier time Mr Verinder's report. She submitted that Mrs Bewley was confused and concerned at the insistence of the Council that she remove the Ginkgo tree to which she was emotionally attached. She did not receive the engineer's report until February 2014 and was unaware herself of his opinion that the Ginkgo tree was not the cause of the displacement of the retaining wall. The arborist she had engaged in 2013 had suggested that the Ginkgo tree was a contributing cause of the displacement of the retaining wall. Certainly, the Council had expressed that view to her. Hence, it was not the case that Mrs Bewley had received Mr Verinder's engineering report at an earlier point in time but chose not to disclose its contents to the Council but rather leave the Council to issue the order and commence the proceedings. Rather, Mrs Bewley too was unaware of Mr Verinder's opinion.

39 Ms Pearman also submitted that the Order No 21 had not been validly issued. This validity of the order was raised in Mrs Bewley's defence in the proceedings. It was argued that the circumstances that must exist in order for an Order No 21 to be validly issued, namely that "the land or premises are not in a safe or healthy condition", did not exist at the time the order was issued.

40 I do not find it necessary to determine this defence on this application for costs. The fact remains that the order was valid unless and until a court of competent jurisdiction declared it to be invalid. The order was, therefore, effective at and after the time it was issued. Mrs Bewley did not challenge its validity at the time of its issue or seek to appeal against it. Her conduct in not undertaking the works required by the order, or in not responding to the Council, until after the proceedings were commenced had nothing to do with any belief by her that the order was invalid.

41 I consider I need to evaluate the reasonableness of Mrs Bewley's conduct prior to the Council commencing the proceedings in light of the facts that have now been revealed by the engineer's report. The engineer's report now reveals that the Council was in fact mistaken in believing that the displacement of the retaining wall was caused by the Ginkgo tree and that the Ginkgo tree would continue to displace the wall and pose a safety risk to persons on the adjoining public footpath.

42 The factual basis for the Council's actions in issuing the Order No 21 and bringing the proceedings to enforce the order were incorrect. I do not consider that it was unreasonable for Mrs Bewley to not ascertain at an earlier point of time that the Council was factually mistaken in its belief. True it is that Mrs Bewley had been required by the earlier emergency order to engage an engineer and provide an engineer's report to the Council. Mrs Bewley did speak to an engineer but he did not provide a report. Mrs Bewley's summary of what the engineer said to her supported the view that the Ginkgo tree may be a contributing cause to the displacement of the wall. There is no evidence that the engineer advised Mrs Bewley in the terms that Mr Verinder subsequently did in February 2014.

43 Equally, however, the Council could have itself engaged an engineer to provide advice as to the cause of the displacement of the retaining wall and in particular whether the assumption that the Council officers had made that the Ginkgo tree was the cause of the displacement was in fact correct. The Council did not do so.

44 I do not consider that Mrs Bewley's failure to provide engineering advice that the true cause of the retaining wall's displacement was hydrostatic pressure and not the Ginkgo tree can be considered to be unreasonable but the Council's failure to do likewise was not unreasonable.

45 I therefore consider that the Council has not established that Mrs Bewley's conduct in not providing the engineering advice that she subsequently obtained before the commencement of the litigation was so unreasonable as to justify the making of an order that Mrs Bewley pay the Council's costs of the proceedings.

46 The Council's other argument relied upon Mrs Bewley's conduct after the proceedings had commenced. The Council submitted that, by Mrs Bewley improving the drainage behind the wall by installing weepholes, she had provided, in effect, the relief the Council had sought in the Order No 21 and in the summons in the proceedings. The Council submitted that Mrs Bewley had, in effect, capitulated or surrendered to the Council. To defend proceedings but then to belatedly surrender is to act unreasonably, justifying an alternative costs order: Ralph Lauren at [26].

47 I disagree with this submission. The order and the summons each sought for Mrs Bewley to remove the Ginkgo tree and to demolish the retaining wall. Mrs Bewley has done neither. Rather, by approving the drainage behind the wall, the wall has been put in a safe and healthy condition. There is no justification for taking the action specified in the order, and claimed in the summons, of removing the Ginkgo tree and demolishing the retaining wall to ensure that the retaining wall is placed and kept in a safe and healthy condition if the retaining wall has already been placed in a safe and healthy condition.

48 I view this situation as the happening of a supervening event which has rendered the further litigation of the proceedings futile. The supervening event of the installation of weepholes in the retaining wall was brought about by Mrs Bewley, but I do not consider that her conduct is unreasonable. It was a proper response to the engineer's recommendations in February 2014. It was not done for any improper purpose, such as to frustrate the proceedings. I do not consider that the timing of the action was unreasonable, for the reasons I have earlier given. Mrs Bewley did not have the engineer's recommendations at an earlier point of time.

49 I consider this supervening event to be causative of the Council's discontinuance of the proceedings. Mr Huynh, in his affidavit, says:

After receiving the report of Mr Johnson about the works carried out on the subject wall and considering the options expressed by Mr Verinder and Mr Paroissien at the mediation and in their reports dated 26 February and 25 February respectively, and reviewing the certification provided by Mr Verinder, I formed the opinion that Council's order dated 6 June 2013 no longer needed to be complied with, in its terms and that the work already carried was sufficient to overcome the circumstances for issuing the order at first instance. That is, the land was no longer in an unsafe condition and no longer likely to collapse on the public footpath.

50 Where there is no unreasonableness in the conduct of Mrs Bewley, then notwithstanding that the Council might have achieved the outcome it had sought by issuing the order and bringing the proceedings of placing the retaining wall in a safe or healthy condition by reason of the happening of the supervening event, the proper exercise of the costs discretion will usually be to make no order as to costs: Ralph Lauren at [33].

51 The Council submitted that in such event it should nevertheless receive an order for costs from 13 May 2014. On that day, the Council wrote to Mrs Bewley offering to discontinue the proceedings on the basis that each party pay their own costs. However, the Council's letter was not an offer of compromise under the UCPR or a formal Calderbank letter. Moreover, I do not consider it was unreasonable for Mrs Bewley to not accept that offer. Prima facie, Mrs Bewley could consider that she would be entitled to a costs order in her favour if the Council were to discontinue the proceedings, under r 42.19. The factors put forward by the Council in its letter did not address the basis that I consider justifies making no order for costs, namely the happening of the supervening event of the installation of weepholes in the retaining wall to improve the drainage behind the wall and thereby place it in a safe or healthy condition.

52 I therefore consider Mrs Bewley did not act unreasonably in not accepting the Council's offer in its letter of 13 May 2014 and that Mrs Bewley should not be required to pay the Council's costs from 13 May 2014.

53 In conclusion, I consider that it is appropriate in the circumstances to order otherwise than the default order in r 42.19 of the UCPR, namely, that it is proper to order that each party pay their own costs of the proceedings. This includes that the parties should pay their own costs of today's application for costs.

54 The Court:

(1) Grants leave to the applicant to discontinue the proceedings pursuant to r 12.1 of the Uniform Civil Procedure Rules 2005.

(2) Orders each party to pay their own costs of the proceedings.

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Decision last updated: 15 September 2014