Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Ross v Lane Cove Council [2014] NSWCA 50
• Hearing dates: 20 February 2014
• Decision date: 13 March 2014
• Before: Meagher JA at [1]; Leeming JA at [2]; Tobias AJA at [86]

Decision

1. Extend the time within which to appeal.

2. Appeal allowed.

3. Set aside the orders made on 14 June 2013.

4. Remit the proceeding to the Land and Environment Court for determination in accordance with law.

5. Otherwise dismiss the notices of motion filed 3 December 2013 and 13 February 2014.

6. No order as to the costs of the notices of motion or of the appeal, with the intent that the parties bear their own costs of those motions and the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: LAND AND ENVIRONMENT COURT - enforcement of planning laws - injunction to demolish unauthorised works and reinstate property - whether necessary to join new registered owner - whether order conditional upon new owner's consent - whether new owner should be joined so as to be bound by order - whether sufficient to notify new owner - new owner directly affected and should have been joined - Environmental Planning and Assessment Act 1979 (NSW) s 76A; PRACTICE - parties - obligation to join all parties directly affected by orders sought - whether a person not in breach or threatening to breach a necessary party - circumstances when joinder not necessary considered - effect of Civil Procedure Act 2005 (NSW) ss 56-59 - effect of liberty to apply - orders made in absence of necessary party set aside; PRACTICE - injunctions - need for clarity - construction of order - whether implied condition to obtain owner's consent - whether non party could ignore order
• Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-59; Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 123, 124, 149D, 149E; Supreme Court Act 1970 (NSW), s 63; Supreme Court of Judicature Act 1875 (UK), First Sch, O XVI r 13; Supreme Court Rules 1970 (NSW), Pt 51 r 6(2); Supreme Court Rules (Amendment No 412) 2007 (NSW); Uniform Civil Procedure Rules 2005 (NSW), rr 6.23, 6.24, 12.7, 31.8, 51.9, 51.16, 51.53
• Cases Cited: Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58; Australian Catholic University v Minister for Planning and Infrastructure [2013] NSWLEC 174; Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; 70 NSWLR 201; Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364; Blacktown City Council v Wilkie [2001] NSWLEC 269; 119 LGERA 255; Canterbury City Council v Mihalopoulos [2010] NSWLEC 248; Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220; CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (in liq) (No 2) [2011] NSWLEC 91; Dr Drury's Case (1610) 8 Co Rep 141b; 77 ER 688; Fairfield City Council v Ly [2008] NSWLEC 322; Fitzpatrick v Council of the City of Lithgow [2004] NSWLEC 109; Glaser v Poole [2010] NSWLEC 143; Harmer v Oracle Corporation Australia Pty Ltd [2013] FCAFC 63; 299 ALR 236; Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; 220 CLR 472; Hogan v Hinch [2011] HCA 4; 243 CLR 506; Hunters Hill Council v Fraser [2006] NSWLEC 744; ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248; John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; Lane Cove Council v Ross (No 4) [2012] NSWLEC 191; Lane Cove Council v Ross (No 5) [2013] NSWLEC 17; Lane Cove Council v Ross (No 6) [2013] NSWLEC 74; Lane Cove Council v Ross (No 7) [2013] NSWLEC 76; Lane Cove Council v Ross (No 12) [2013] NSWLEC 82; Lane Cove Council v Ross (No 13) [2013] NSWLEC 80; Lane Cove Council v Ross (No 11) [2013] NSWLEC 81; Lewis v Condon; Condon v Lewis [2013] NSWCA 204; Little v Lewis [1987] VR 798; MacIntosh v Lobel (1993) 30 NSWLR 441; Matthews v Australian Securities and Investments Commission [2000] FCA 288; 97 FCR 396; Nader v Sutherland Shire Council [2008] NSWCA 265; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69; Peacock v Repatriation Commission [2007] FCAFC 156; 161 FCR 256; Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52; Ross v Lane Cove Council [2012] NSWLEC 1364; Siminton v Australian Prudential Regulation Authority [2008] FCAFC 90; Smith v Brooksbank (1834) 7 Sim 18; 58 ER 743; Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469; Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41; 150 FCR 110; Victoria v Sutton [1998] HCA 56; 195 CLR 291; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71; Woollahra Municipal Council v Sahade [2012] NSWLEC 76
• Texts Cited: P Biscoe, Freezing and Search Orders: Mareva and Anton Pillar Orders (2nd ed 2008, LexisNexis Butterworths Australia); J Tarrant, "Construing undertakings and court orders" (2008) 82 Australian Law Journal 82; S Tully, Interpretation and Use of Legal Sources (2013, Thomson Reuters)
• Category: Principal judgment
• Parties: Raymond Ross (Appellant); Lane Cove Council (Respondent)
• Representation: Counsel: GTW Miller QC / T To (Appellant); NM Eastman / JM McKelvey (Respondent); Solicitors: Duncan Scott (Appellant); Pikes & Verekers Lawyers (Respondent)
• File Number(s): 2013/203557

Decision under appeal

• Jurisdiction: 9106
• Citation: Lane Cove Council v Ross (No 14) [2013] NSWLEC 87
• Date of Decision: 2013-06-14 00:00:00
• Before: Pepper J
• File Number(s): 2012/40628

HEADNOTE

Mr Ross made alterations and additions to a Northwood property contrary to a development consent granted by Lane Cove Council. The Council obtained orders from the Land and Environment Court that Mr Ross demolish unauthorised works and reinstate the property in accordance with the consent.

During the proceedings in the Land and Environment Court, it became apparent that Mr Ross was no longer the registered proprietor of the property. The Court rejected Council's submission that the transfer to the new owner was a sham transaction to hinder or avoid enforcement, but issued injunctions without the joinder of the new owner on the basis that Mr Ross continued to exercise control over and actively participate in the development.

On appeal, the principal issue was whether the primary judge erred in issuing injunctions without requiring the joinder of the new owner.

Held by the Court, allowing the appeal and remitting the proceedings for further hearing by the Land and Environment Court:

1. The injunctions are not subject to an implied condition that Mr Ross obtain the new owner's permission to enter onto the land to carry them out. The words of the order bear their ordinary meaning, being a prima facie unqualified mandatory obligation on Mr Ross to demolish, rebuild and reinstate: [26]-[34].

ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 and Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41; 150 FCR 110 applied

2. There is nothing in Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; 220 CLR 472 which prevents the joinder of a landowner to a proceeding so as to be bound by the court's order, even though the landowner is not in breach or threatening to breach. By joining the owner, the owner is (a) bound by the court's determination that the work is unauthorised and the exercise of discretion in ordering demolition and reinstatement (but is not required to carry out the order as it is not directed at him or her), and (b) entitled to appeal from the order (but cannot challenge it collaterally and cannot prevent it being implemented by the party to whom it is directed): [37]-[45].

Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; 220 CLR 472 discussed and applied

Canterbury City Council v Mihalopoulos [2010] NSWLEC 248, Glaser v Poole [2010] NSWLEC 143, Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469, Nader v Sutherland Shire Council [2008] NSWCA 265, Fairfield City Council v Ly [2008] NSWLEC 322, Woollahra Municipal Council v Sahade [2012] NSWLEC 76, Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71, Hunters Hill Council v Fraser [2006] NSWLEC 744, Fitzpatrick v Council of the City of Lithgow [2004] NSWLEC 109 and Blacktown City Council v Wilkie [2001] NSWLEC 269; 119 LGERA 255 referred to

3. Merely because a person is not a party to an order does not mean that it can be ignored. The new owner is not free to ignore the Land and Environment Court's order merely because she was not a party to it: [46]-[50].

ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 and Hogan v Hinch [2011] HCA 4; 243 CLR 506 applied

4. A person who is directly affected by the orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the plaintiff or applicant or person applying for those orders. Joinder, not notice, is the default position. Nothing in ss 56-59 of the Civil Procedure Act 2005 (NSW) undermines this principle in its application to the present case. That said, because the underlying concern is natural justice, joinder is not always necessary: [51]-[63].

News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410, Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52, John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 and Victoria v Sutton [1998] HCA 56; 195 CLR 291 applied

CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (in liq) (No 2) [2011] NSWLEC 91 and Australian Catholic University v Minister for Planning and Infrastructure [2013] NSWLEC 174 considered

Woollahra Municipal Council v Sahade [2012] NSWLEC 76 approved

4. The new owner was directly affected by the orders sought by Council. The orders would provide Mr Ross a defence of lawful authority to what would otherwise be a (substantial) trespass to her land, to perform works which may be either authorised or partially immunised from regulatory action under the Environmental Planning and Assessment Act 1979 (NSW). There was a prima facie obligation upon Council to join the new owner: [64]-[68]

5. There was no waiver of the new owner's right to be joined or heard in light of an appearance by a solicitor on her behalf at a directions hearing; this did not displace the Council's obligation to join or afford natural justice to persons affected by the orders it seeks: [69].

News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 and John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 applied

6. The grant of liberty to apply to all parties did not alter the position in relation to the new owner's right to be joined or heard: [70].

Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; 70 NSWLR 201 applied

7. There was no error in the primary judge's finding that Mr Ross continued to exercise control over and actively participate in the development, either on the basis that formally the evidence relied on was adduced on an interlocutory application prior to the commencement of the trial or on the basis that that evidence did not support that finding.

Judgment

1 MEAGHER JA: I agree with Leeming JA.

2 LEEMING JA: The principal issue in this appeal is whether orders for the demolition and reinstatement of residential building works should be set aside by reason of the fact that they were made against the builder and former owner in proceedings to which the current registered proprietor had not been joined. I have concluded that the orders should be set aside. In order to explain why, it is necessary to deal with the unusual and regrettably extensive procedural background before turning to the applicable principles.

Procedural background

3 The respondent (Council) granted development consent on 2 April 2008 to Mr Ross for alterations and additions to an existing dwelling in Bayview St, Northwood. It commenced proceedings against him by summons filed in June 2012, seeking declarations that some of the alterations and additions had not been carried out in accordance with the consent and in breach of s 76A of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). Council also sought a negative injunction restraining Mr Ross from carrying out further development in breach of s 76A (prayer 3), and orders that he demolish specified unauthorised works and rebuild and/or reinstate the premises in accordance with the drawings approved by the Council's consent (prayers 4 and 5).

4 In July 2012, Mr Ross filed an affidavit which acknowledged that there had been "changes to the original DA" but that they had been communicated to Council, had been "required from an engineering standpoint" and "would ordinarily be approved by Council under existing guidelines". Shortly before Council's summons was listed for hearing, Mr Ross applied under s 96 of the EP&A Act to modify the consent (for a second time, the first application having been unsuccessful). On 13 August 2012, the Court declared that alterations and additions had not been carried out in accordance with the consent and were contrary to s 76A of the EP&A Act, and issued a final negative injunction restraining Mr Ross from carrying out any further development of the premises in breach of s 76A. Her Honour's reasons record that the orders were made by consent: Lane Cove Council v Ross (No 4) [2012] NSWLEC 191 at [15]. The balance of the summons was adjourned pending Council's determination of the modification application.

5 Council rejected the second modification application. Mr Ross exercised his right to a Class 1 merit appeal, which was heard on 18 and 19 December 2012: Ross v Lane Cove Council [2012] NSWLEC 1364. Commissioner Dixon's reasons, given ex tempore at the conclusion of the hearing, indicate that she found that the modification was substantially the same as that originally proposed, and intended to grant consent to the modification, subject to some qualifications. The proceedings were adjourned to permit drawings to be prepared and certified. It also "became apparent that the applicant is not the owner of the site" (see at [20]), and the Commissioner observed that the transfer could be registered and owner's consent given before the proceedings returned to Court.

6 The primary judge recorded that when the matter returned to Court, the plans produced by Mr Ross were inconsistent with the Commissioner's reasons: at [25]. Thereafter throughout 2013 there ensued an unfortunate history of interlocutory applications by Mr Ross. In February 2013, he unsuccessfully applied to vary the interlocutory orders to permit him to complete the building works: Lane Cove Council v Ross (No 5) [2013] NSWLEC 17.

7 On 20 March 2013, the matter was listed for directions before the primary judge, with a view to its being given a hearing date and for final pre-trial directions to be made. Mr Ross did not appear. However, a solicitor sought to be heard on behalf of Ms Sahab Chami. (In fact, she said she appeared for Ms Hadia Edilbi, but it was common ground when the appeal was heard that Ms Hadia Edilbi and Ms Sahab Chami are one and the same person. Since the registered proprietor of the land has been, since early May 2013, Ms Sahab Chami, I shall refer to her by that name.) The solicitor said that she had recently received instructions that Ms Chami had an equitable entitlement to the land, but that she had no instructions at this stage to apply to become a party. The solicitor appearing for the Council advised that a recent title search still disclosed Mr Ross as the registered proprietor.

8 Ms Chami's application for an adjournment was rejected. The primary judge told the solicitor (who it seems did not have a copy of Council's originating process) that Mr Ross had conceded that building work had been carried out in breach of the EP&A Act, and read out for her benefit orders 4 and 5 which the Council sought. The primary judge listed the matter for hearing for three days commencing Monday 27 May 2013.

9 On Wednesday 22 May 2013, Mr Ross applied to adjourn the hearing set down to commence the following Monday. His application was refused: Lane Cove Council v Ross (No 6) [2013] NSWLEC 74.

10 All of the three days commencing 27 May 2013, save for the afternoon of Wednesday 29 May, were occupied by further interlocutory applications brought by Mr Ross, who at the time was unrepresented. He applied repeatedly for an adjournment: Lane Cove Council v Ross (No 7) [2013] NSWLEC 76; Lane Cove Council v Ross (No 12) [2013] NSWLEC 82 and Lane Cove Council v Ross (No 13) [2013] NSWLEC 80 and once for her Honour to disqualify herself: Lane Cove Council v Ross (No 11) [2013] NSWLEC 81.

11 When his applications were dismissed, Mr Ross left the Court (at around 2.30pm on 29 May) complaining that he was feeling unwell. Her Honour said "Mr Ross, before you go, please be aware that, as I said, orders may be made against you, including demolition, reinstatement and costs". The matter thereafter proceeded in his absence (the transcript notes that he reappeared at 4pm at the entrance to the courtroom, but did not return to the Bar table; the hearing continued until around 4.30pm).

Reasons for judgment and orders of the primary judge

12 Her Honour delivered reasons promptly thereafter, on 7 June 2013: [2013] NSWLEC 87, and indicated in [94] the general terms of the demolition and reinstatement orders which her Honour proposed to make. Substantially those orders (with further details inserted) were made on 14 June 2013. (It is not clear from the materials whether Mr Ross exercised his right to be heard in relation to their form, but nothing presently relevant turns on that.)

13 The orders made on 14 June 2013 and entered on 21 June 2013 are reproduced in the annexure to this judgment. Their substance is as follows. Order 1 is that within 90 days, Mr Ross demolish or cause to be demolished 14 identified unauthorised works, including a concrete slab, a passageway, windows, a balcony and door openings, a concrete block lift core shaft, walls and concrete poured over almost the entire rear yard. Order 2 is that within 90 days Mr Ross rebuild and/or reinstate the premises in accordance with the development consent, comprising 10 identified works, including refilling the large subfloor area for the provision of a double garage, reinstatement of various windows and doors and walls and landscaping. Order 3 provides that the works are, to the extent necessary, to be carried out in accordance with specified paragraphs of an affidavit read in the proceedings. Order 4 is that Mr Ross pay the Council's costs, and order 5 gives liberty to apply on five days' notice.

Prosecution for contempt and bringing this appeal

14 No differently from the proceedings at first instance, this appeal has had what was accurately described by senior counsel now appearing for Mr Ross as "an unfortunate procedural history".

15 Mr Ross had filed a notice of intention to appeal on 4 July 2013, but Council adduced evidence that it was never served. A notice of appeal was belatedly filed on 4 October 2013. Mr Ross adduced evidence that he had been advised by his former solicitor that, having filed that notice, there was a further three months within which an appeal could be brought as of right. (That advice was wrong; the former regime of "holding appeals" - more formally, notices of appeal without appointment, pursuant to Pt 51 r 6(2) of the Supreme Court Rules 1970 (NSW) - was repealed on 1 January 2008: Supreme Court Rules (Amendment No 412) 2007 (NSW). For the last six years, the position has been governed by r 51.9 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).)

16 Both parties in this Court proceeded on the basis that the "material date", from which the three month period for an appeal prescribed by UCPR r 51.9 commences, was 7 June 2013, when her Honour's reasons were delivered. But appeals only lie from judgments or orders, not reasons: Lewis v Condon; Condon v Lewis [2013] NSWCA 204 at [117]; Harmer v Oracle Corporation Australia Pty Ltd [2013] FCAFC 63; 299 ALR 236 at [21]. Accordingly, the material date was in fact 14 June 2013. The failure to serve the notice of intention to appeal meant that the time for filing an appeal was 28 days after the material date: UCPR r 51.16(1)(c). Had the notice of intention to appeal been served, then the time for filing an appeal would have been three months after the material date: UCPR rr 51.16(1)(b) and 51.9(1)(a). It is not necessary to dwell any longer on the time required and the principles applicable to the application for an extension, because the Council pragmatically took the stance that if the appeal were found to be reasonably arguable it would not oppose the extension of time.

17 In support of his application for extension of time in this Court, an affidavit of Mr Ross was read, in which he stated that he had not complied with the orders made on 14 June 2013, and that he was presently being prosecuted for contempt by a statement of charge filed on 23 September 2013 by the Council in the Land and Environment Court. Notwithstanding that the 90 day period had expired, on 29 November 2013 a judge of that Court ordered, by consent, that those orders "are suspended on the terms of the Undertaking of Mr Ross to the Court". The undertaking was to the effect that Mr Ross would conduct no work on the property, would pursue his appeal diligently including by seeking expedition and not applying for any adjournment. This Court was told that the prosecution for contempt had been stayed pending the determination of the appeal, on the basis that if the orders were set aside, that would affect the penalty if Mr Ross were found guilty. (It would not affect his guilt or innocence, for orders of superior courts are valid until set aside: Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 at [11], and it remains a contempt to disobey orders that are subsequently set aside: see Matthews v Australian Securities and Investments Commission [2000] FCA 288; 97 FCR 396 at [20] and Little v Lewis [1987] VR 798 at 804-805.)

18 Similarly, the Council had applied for the appeal to be dismissed pursuant to r 12.7 of the UCPR. That rule, when read with rr 51.1(3) and (4), empowers this Court to dismiss proceedings if the appellant does not prosecute them with due despatch. The appeal was expedited on 9 December 2013 and there was serious non-compliance with the directions made on that date to facilitate preparation of the matter for hearing. Appeal books were only filed on the day before the hearing, including written submissions and a proposed amended notice of appeal abandoning most of the grounds of appeal and confining the challenge to grounds 2, 2A and 3. (Leave to file the amended notice of appeal was granted when the matter was heard.) Once again, there was evidence explaining that delay, which was also squarely and candidly acknowledged by senior counsel, who had only recently been retained. The Council, for its part, responded very promptly to the substantive submissions belatedly served on behalf of Mr Ross. Council's approach was, once again, sensible and pragmatic. It is in both parties' interests for there to be certainty as to the status and meaning of the orders.

19 Accordingly, I turn to the merits of the appeal, which is determinative of the fate of the two motions also before the Court.

Ground 3

20 It is convenient to commence with ground 3, which was the principal ground relied on when the appeal was heard. It is in these terms:

"That her Honour was in error in determining the proceedings without requiring the respondent to join the owner of the property as a party to the proceedings."

21 There was evidence before her Honour that in early May 2013, Mr Ross ceased to be the registered proprietor of the land, and Ms Chami became registered proprietor. This was, properly, drawn to her Honour's attention. In particular, in Council's submissions on the Wednesday afternoon, made in the absence of Mr Ross, her Honour's attention was drawn to the change in title, a recent search was tendered, and her Honour said:

"In fairness to Mr Ross, ownership is certainly raised by him, it is an issue in these proceedings. ... the Court would be, I think, not discharging its duty if it was simply to ignore the fact that there has now been a change of ownership."

22 Her Honour did not ignore the fact that Ms Chami had become the registered proprietor. The change of ownership is reflected in her Honour's reasons, which record that the property was sold to Ms Chami at a significant financial loss in about October or November 2012: at [11] and [73]. The important paragraphs for present purposes are [82]-[84]:

"82. Mr Ross submits that the Court cannot go behind the change of ownership in the property and that to order relief binding only him would be futile in these circumstances. I do not agree.

83. I accept that Mr Ross is no longer, to the extent that he ever was, the registered owner of the property. Furthermore, while the circumstances surrounding the change of ownership are more than a little suggestive of the sham transaction the council contends for, I do not accept, on the balance of probabilities that the change in ownership can be characterised in this way on the evidence before me.

84. But, this is not an end to the matter. It is sufficient for the purposes of s 124 of the EPAA that, by his own admission, Mr Ross is the person who carried out the unlawful works on the property and has expressed an intention to continue carrying out building works on the property. It was Mr Ross' evidence in cross-examination that as the engineer who designed the structure on the property, he is the person responsible for its continued construction and completion. I therefore find that Mr Ross continues to actively participate in the building works on the property and exercises control over them notwithstanding the change in ownership. The relief sought by the council may therefore be ordered against Mr Ross."

(Consistently with what appears from [83], the Court was told that Council had maintained that the transaction was a sham and that "it was also my submission in the court below that Ms Chami and Mr Ross are related entities".)

23 Thus it is clear that her Honour, first, rejected Council's submission that the change in ownership was a sham, secondly, because Mr Ross was found "to actively participate in" and "exercise control over" the building works, considered that relief could be ordered against him, and thirdly, rejected the submission made by Mr Ross that no injunction should issue because it would be futile to do so. Fourthly, her Honour turned to questions of discretion in accordance with Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, and concluded that orders should issue.

24 Having rejected what appears to have been Council's primary submission that the late change in legal title was yet another device to hinder Council's enforcement proceedings, it was entirely proper for her Honour to consider the second, third and fourth matters referred to above, which go to power and discretion. No complaint was made in respect of those matters on appeal. However, they are not the only matters which bore upon the Court's power to make the orders. Nor were they the only matters which bore upon the Court's discretion to make the orders.

25 The resolution of ground 3 requires an examination of a series of related questions. One is the class of persons against whom an order under s 124 of the EP&A Act could issue. Another is the question of joinder of parties to the proceeding, and the effect of failing to join all necessary parties. A third is the obligation of the Court to accord procedural fairness to a person affected by an order. A fourth is the construction and legal effect of the orders made on 14 June 2013. So far as appears from the record of what occurred before the primary judge, her Honour received no submissions on the second, third and fourth of those questions, which are distinct from the matters to which her Honour had regard.

Construction of the Order

26 The threshold question is the construction of the order made on 14 June 2013. Did it, as Mr Ross submitted, require him unconditionally to carry out demolition and reinstatement works on the Northwood property transferred to Ms Chami the previous month? Or, as Council submitted, were the obligations imposed by it conditional upon Mr Ross obtaining Ms Chami's permission to enter onto the land to carry out such works? It was said that "she's entirely entitled to exclude him from the land if he sought to carry out the orders", something which is "implicit in the nature of the order insofar as she is not bound, she is the landowner, she can exclude him".

27 Council's construction of the orders sits ill with the language of the order and the fact that the order is an injunction breach of which sounds in contempt.

28 The plain and ordinary meaning of the words of the order is that they are unconditional in their operation. The structure of orders 1 and 2 is that within 90 days Mr Ross demolish certain structures and rebuild or reinstate other structures. The obligation is unqualified and mandatory, save for granting liberty to the parties to apply (I address a submission advanced by Council in relation to the liberty to apply below).

29 Moreover, orders should be clear on their face. Council's construction that the prima facie unqualified mandatory obligation to demolish, rebuild and reinstate is conditional detracts from this. "Plainly injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction": ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259 (Lockhart J, with the agreement of Gummow and French JJ); Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41; 150 FCR 110 at [40] (Branson J, Lindgren and Finkelstein JJ agreeing).

30 Thirdly, it is open to have regard to extrinsic evidence, at least if the language of the order is ambiguous or susceptible of more than one meaning: Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58 at [29]. The primary source of extrinsic material, in a case like this where the orders reflect the findings and reasoning at trial, are the reasons for judgment: Siminton v Australian Prudential Regulation Authority [2008] FCAFC 90 at [24]. In Peacock v Repatriation Commission [2007] FCAFC 156; 161 FCR 256 at [18] the Full Court contemplated the possibility that a prima facie unlimited order might be subject to a limitation from the reasons for judgment. This resembles the submission made by Council in this appeal.

31 It is not necessary to determine or for that matter say anything about (a) whether "ambiguity" is required, (b) what "ambiguity" is in this context and (c) whether the orders of 14 June 2013 are ambiguous in the requisite sense, such that resort to extrinsic material may be had (this is, at present, a question not free from doubt, as is noted by J Tarrant, "Construing undertakings and court orders" (2008) 82 ALJ 82 and in P Herzfeld, T Prince and S Tully, Interpretation and Use of Legal Sources (2013, Thomson Reuters) at 689-690). It is not necessary to do so because all extrinsic considerations point in the same direction as the terms of the orders on their face. There is no suggestion in the reasons for judgment that the orders were conditional upon consent of Ms Chami. To the contrary, her Honour found that Mr Ross had the ability and intention to continue carrying out building works, and regarded himself as responsible for doing so.

32 That is to say, the premise of the orders was her Honour's conclusion that Mr Ross had the ability and intention to enter onto land no longer his own, recently transferred to Ms Chami, for the purpose of carrying out building works. That may be seen in [84] of her Honour's reasons reproduced above.

33 What is more, in circumstances where Council's case was that the transfer to Ms Chami had been a sham, and that there had been a series of unmeritorious applications for adjournment and recusal in order to defeat or at least delay its enforcement proceedings, there was no reason for Council to seek orders whose efficacy was contingent upon the continuing agreement of Ms Chami. If on their true construction the orders were conditional upon the agreement of Ms Chami, then on Council's case at trial, they would have been futile and should not have been made.

34 All those considerations point to the orders bearing their ordinary meaning, compelling Mr Ross or his servants or contractors to go onto Ms Chami's land and cause the demolition and reinstatement work to be performed within 90 days.

35 Council's submissions in favour of the order being subject to an implied condition turned on two related propositions. The first was that an owner who is merely an owner of unauthorised works does not contravene the EP&A Act and therefore cannot be the subject of an order under s 124. The second was the proposition that not being bound by the order, Ms Chami was free to ignore it, including by excluding Mr Ross and his contractors from her land. Council submitted that:

"[I]t is only against a person in breach of the EP&A Act against whom orders can be made. It is only that person that is bound by the orders. The owner's rights in this case are unaffected. She can simply deny Mr Ross access to the land for the purposes of carrying out the orders if she so chooses. She is not a necessary party if her rights are unaffected."

36 The submissions in that paragraph conflate a number of separate concepts, which are addressed below.

Persons may be joined so as to be bound by orders

37 It was established by Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; 220 CLR 472 at [47]-[48] that ss 123 and 124 do not extend to making orders to remedy or restrain breaches against persons who are not themselves in breach, or threatening to act in breach, of the EP&A Act. The source of the restriction is the statutory description of the kind of order which may be made under ss 123 and 124: "an order to remedy or restrain a breach of this Act". The reasoning of the primary judge at [82]-[84] was directed to this issue, and it was entirely appropriate for her Honour to reason in this manner.

38 However, an order may be made against one defendant, whilst binding another. Very typically, a council will seek orders under s 123 against a builder carrying on unauthorised works on a property, and will sue both the owner and the builder. The builder may be required to demolish the unauthorised work. By joining the owner, the owner is (a) bound by the court's determination that the work is unauthorised and the exercise of discretion in ordering demolition and reinstatement, and (b) entitled to appeal from the orders. After all, the owner owns the land of which the unauthorised works form part.

39 Joinder of a party for the purpose of binding him, her or it occurs in many areas of the law. For example, very often a financial institution is joined to proceedings in which an asset preservation order is sought against a defendant (see for example P Biscoe, Freezing and Search Orders: Mareva and Anton Pillar Orders (2nd ed 2008, LexisNexis Butterworths Australia) at 111-115).

40 The primary judge referred at [86] to five decisions where orders to remove unlawful development works had been made. Three were cases where the owners were the only respondents (Canterbury City Council v Mihalopoulos [2010] NSWLEC 248, Glaser v Poole [2010] NSWLEC 143 and Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469, upheld on appeal: Nader v Sutherland Shire Council [2008] NSWCA 265). One (Fairfield City Council v Ly [2008] NSWLEC 322) was a case where both the owner and tenant were joined. And one (Woollahra Municipal Council v Sahade [2012] NSWLEC 76) was the decision of Preston CJ where, when it became apparent that the unlawful works extended onto property other than the respondent's, there was an adjournment so as to permit the owners corporation to apply to intervene or be heard: see at [78]-[79].

41 There are many other similar cases when local councils have applied to the Land and Environment Court to enforce planning laws. In Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71, the council sought an injunction against the occupier of land, and joined the landowner. In Hunters Hill Council v Fraser [2006] NSWLEC 744, the council sought the removal of water tanks installed without development approval on a reserve adjoining the respondents' land. The Minister (from whom the respondents licensed the land on which the tanks were constructed) applied to be, and was, joined: see at [5]. In Fitzpatrick v Council of the City of Lithgow [2004] NSWLEC 109, a neighbour brought proceedings in Class 4 challenging Council's development consent, seeking declaratory and injunctive relief (including a demolition order) against the Council, the former registered proprietor when the development application had been lodged, and the current registered proprietor and its directors. Although a demolition order was not made, an injunction issued against the registered proprietor from using the dwelling as a display home, which was prohibited under the applicable planning regime (use as a dwelling however was not prohibited). In Blacktown City Council v Wilkie [2001] NSWLEC 269; 119 LGERA 255, where Council sought injunctions preventing the land from being used as a tip, the owner, lessee and sub-lessee were all joined; the owner (Mr Constantine) was joined on the application of his lessee Ms Wilkie: see at [5].

42 Contrary to the Council's submissions, there is nothing in Hillpalm which prevents the joinder of a landowner to a proceeding so as to be bound by the court's order, even though the landowner is not in breach or threatening to breach. The reasons of McHugh ACJ, Hayne and Heydon JJ at [47]-[48] are not directed to the parties joined to the proceeding, but to the restriction on the power to make orders against particular persons. The landowner who is not in breach and does not threaten a breach may not be ordered to remedy or restrain a breach, but by being joined is bound by the order against the person (who may be a tenant or licensee or former owner) who has breached or threatens to breach the Act. That is illustrated by the decisions referred to above. It is in particular illustrated by Sahade. The owner is bound but is not required to carry out the order as it is not directed at him or her. But, being bound by it, he or she cannot challenge it collaterally and cannot prevent it being implemented by the party to whom it is directed.

43 If that were not so, then it would be open to a landowner who disagreed with the order to commence fresh proceedings seeking to reagitate the question. It might be the case, for example, that the vendor of land might concede that works were unauthorised, but the purchaser might dispute that they were. This gives rise to the uncertainty of delay and inefficiency, and the possibility of inconsistent judgments. Indeed, this Court was told, in relation to proceedings that have more recently been commenced by Council against Ms Chami, that "I have to go through the process of proving that [the works were unauthorised] all again". It would be highly surprising if the multiple litigation in relation to the same parcel of land was required; this would be contrary to the fundamental Judicature rule that all parties are to be joined so that all matters in dispute may be resolved: see now Supreme Court Act 1970 (NSW), s 63 and UCPR r 6.24.

44 Indeed, the EP&A Act confirms that that is not the position. Section 149B expressly permits a purchaser under a contract of sale to apply for a s 149D certificate which, if granted, will for seven years preclude council from making or applying for an order to repair, demolish, alter, add to or rebuild the building. That protection only makes sense if such orders can be made against a new owner, even if he or she or it was not involved in performing the work which was unauthorised.

45 Conversely, if Council's submissions were accepted and it was not possible to join Ms Chami to the proceedings brought by Council against Mr Ross, then by the device of transferring title to property, the important function of ensuring compliance with the applicable planning regime (regularly exercised by local councils but capable of being exercised by any person) would be frustrated. That is not the law.

Third parties may be liable in contempt

46 Merely because a person is not a party to an order does not mean that it can be ignored. In a passage approved by six Justices in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [58], Lockhart J said in ICI at 262:

"It is not only parties who are answerable for contempt of order of courts. As mentioned earlier, persons who counsel, procure or induce parties to breach injunctions are directly responsible for those breaches. Hence, it is desirable that the terms of the injunctions be readily available to all persons who may be affected by them."

47 It is not necessary for the purposes of this appeal to say anything more about the circumstances in which a third party may be liable in contempt, and in light of the pending proceedings against Mr Ross and Ms Chami, it is desirable not to do so. It is sufficient to observe that Council's submission that Ms Chami was free to ignore the Court's order merely because she was not party to it is incorrect.

48 Those considerations suggest a further difficulty to Council's construction. Council contended that the obligation was subject to Ms Chami's right to exclude Mr Ross from her land. But what if she gave him a more limited licence? What if she insisted that the work be done for free or at a discount and the building material supplied for free or at cost or at a discount? What if she insisted that the work only occur at certain hours, and not at all for the first two weeks or months? What if she insisted on particular tradesmen being used? If in truth the order contained an implied condition, the precise terms of the condition are unclear.

49 Mr Ross and those involved in carrying out the works ordered on 14 June 2013 are entitled to know with precision and clarity what they are obliged to do. The sanction for non-compliance is contempt. The submissions advanced by Council do not detract from the orders bearing their ordinary, unqualified meaning of the Court's orders. The obligations imposed on Mr Ross were not subject to Ms Chami's consent.

50 Because there is a pending prosecution for contempt, and the parties have propounded divergent constructions of the same order, it is desirable to make clear beyond argument what is not decided by these reasons. In the context of contempt, there are as Hodgson JA observed in Athens at [27]-[28] two inter-related questions. The first is what does the order require, on its true construction. That is a question of law: Universal Music Australia Pty Ltd v Sharman Networks Ltd at [19], and it is the starting point for the analysis required to resolve ground 3 of this appeal. The second is whether the order was sufficiently clear to the person affected by it to support its enforcement. The principle has been variously expressed, including by Lindgren AJA with the agreement of McColl JA in Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [152]: "In order to ground a contempt of court, an order or undertaking must be 'clear', 'precise' and 'unambiguous'", referring to Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483. That second question does not arise on this appeal, and these reasons should not be read as saying anything about it.

The test for joinder

51 It is settled law that a person who is directly affected by the orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the plaintiff or applicant or person applying for those orders.

52 In the Superleague case (News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410) at 524-526, the Federal Court (Lockhart, von Doussa and Sackville JJ) applied the test stated by Lord Diplock delivering the advice of the Judicial Committee of the Privy Council in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 criticising the dichotomy between "legal" and "commercial" interests. His Lordship said at 56:

"A better way of expressing the test is: will [a non-party's] rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?"

53 That test has very regularly been followed. Most recently, in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [131], a unanimous High Court said:

"Walker Corporation submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct.

54 Sometimes it is said, as it was said in the present appeal, that merely giving notice to the person affected by the order is sufficient. It will be necessary to return to this in more detail below, but it should be recognised immediately that joinder, not notice, is the default position. In the Superleague case, their Honours said at 526:

"In our opinion, the notice given to the players before trial does not, and could not, extend the jurisdiction of the Court to make orders which offend the test stated in Pegang Mining. Absent an application for joinder by a defendant, or by a third party who claims to be directly affected by the proposed orders, it is for the party prosecuting the proceedings to choose who are the necessary parties to enable the Court to make the orders sought. Generally speaking, to permit [the party prosecuting the proceedings] to transfer to others who might be affected by the outcome of the proceedings the responsibility of deciding whether or not they should apply to be joined could be productive of uncertainty and inconvenience. At times, it could lead to the need to halt expensive litigation part-way through, because a third party insufficiently understood the proceedings, or, through impecuniosity or some other reason, was not adequately advised." (emphasis added)

55 In John Alexander's Clubs the last two sentences of that passage were reproduced, and endorsed by the High Court in these terms at [140]:

"News Ltd v Australian Rugby Football League Ltd was a case where players who had not been joined in the proceedings but only informed of them were not debarred from attacking the orders made. There is no doubt that Walker Corporation was aware of the first proceedings, and it informed the Court of Appeal of that fact. Walker Corporation said there was a reasonable explanation for its delay in seeking to be joined. Whether or not that is so, it had no duty to seek to be joined, and its delay does not in this case call for explanation."

56 It is clear that Council formed the view that the delayed transfer of title was another device to frustrate the Council's enforcement proceedings. It contended that "the whole purpose of the transfer to [Ms Chami] was to try and defeat the proceedings". That in turn led to submissions directed to ss 56-59 of the Civil Procedure Act 2005 (NSW).

57 Contrary to Council's submission that "the line of authority from the Super League case must be read in the context of the overriding purpose set out in the Civil Procedure Act", nothing in ss 56-59 of the Civil Procedure Act undermines this principle, at least in its application to the present case. The joinder of a party directly affected by an order is not, at least not ordinarily, a matter of discretion: it is a matter of obligation upon the party seeking the order. That is why the High Court referred to the position of the non-party Walker Corporation in John Alexander's Clubs at [153] as depending on "matters of right affecting non-parties which rest on general law principles of natural justice".

58 For that proposition, the High Court cited Victoria v Sutton [1998] HCA 56; 195 CLR 291 at [77], where McHugh J said:

"The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order."

59 Council relied on CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (in liq) (No 2) [2011] NSWLEC 91, where Craig J had been taken to that passage (at [12]), but held that there was a discretion to be exercised in accordance with s 56 (at [16]). Ultimately, his Honour did order the joinder of the parties said to be necessary parties, some five weeks before the matters was listed for final hearing. The same approach may be seen in Australian Catholic University v Minister for Planning and Infrastructure [2013] NSWLEC 174 at [38] where, once again, joinder was ordered.

60 Council did not take this Court to any decision where the considerations in ss 56-59 of the Civil Procedure Act had resulted in a party directly affected by orders not being joined. Ultimately, however, it is not necessary to reach a concluded view as to the role of ss 56-59 of the Civil Procedure Act. It is plain from the transcript and reasons of the primary judge that her Honour was never asked to, and did not, address the question whether Ms Chami was a necessary party by reason of the potential for the orders sought by Council to affect her. This is not a case where challenge is made to a discretionary decision of a primary judge not to order joinder because of the matters identified in ss 56-59. Nor is it a case where it could be said that had the question of joinder been brought to her Honour's attention, the only course available to her would have been to proceed in the absence of Ms Chami. It is not clear what Ms Chami might have said, but her pending appeal from Council's refusal of a building certificate (mentioned by the primary judge at [74]) is likely to have been at the forefront of her submission, and the nature and timing of that appeal would undoubtedly be relevant to the exercise of discretion. In short, Council's reliance on any impact ss 56-59 might have had, had the question of parties been considered by her Honour, is no answer to the complaint that it was not considered by her Honour.

61 All of that said, because the underlying concern is (as McHugh J said in Victoria v Sutton) natural justice, joinder is not always necessary. That reflects a very old approach. Although the common law knew nothing of the joinder of a party merely for the purpose of having that party bound by the judgment, equity was not so strict. Where no prejudice would be suffered by a party not being joined, his or her presence could be dispensed with: see for example Smith v Brooksbank (1834) 7 Sim 18; 58 ER 743, where the non-joinder of the executors who were alleged to have assented to the bequest was held not to be fatal. The direct ancestor of the rules in the UCPR governing joinder of parties is the rule of procedure contained in O XVI r 13 in the First Schedule to the Supreme Court of Judicature Act 1875 (UK). That in turn reflected chancery practice. In particular, and relevantly for present purposes, UCPR r 6.23 "Proceedings are not defeated merely because of the misjoinder or non-joinder of any person as a party to the proceedings" is merely a modern formulation of the chancery practice.

62 The positive assent to an order by the executors who were not joined in Smith v Brooksbank has its modern counterpart in the course adopted by Preston CJ in Woollahra Municipal Council v Sahade. His Honour, recognising that the owners corporation was directly affected by the proposed demolition of a staircase which extended onto the common property, proceeded on the basis that the practical impact was low and its attitude to the orders was abundantly clear (the owners corporation was notified of the proposed order, and informed the Court through the applicant local council that it wished neither to be joined nor heard, but had passed a resolution supporting the orders proposed).

63 The primary judge was expressly taken to [65]-[72] and [88] of the reasons in Sahade, but not to the matters at [78]-[79] which deal with precisely the issue before her. The same selectivity was adopted in Council's written submissions in this Court. When it was drawn to the parties' attention, Council made no submission that it was an approach that ought not to be followed. It is an approach which is, with respect, plainly correct.

Ms Chami's rights are directly affected by the orders

64 Ms Chami was directly affected by the orders sought by Council. First, on its proper construction, the order requires Mr Ross to enter onto Ms Chami's land and perform work there. He would have a defence of lawful authority to what would otherwise be a trespass to her land, even if she later applied to the Court for the order to be discharged. "Acts done according to the exigency of a judicial order, afterwards reversed, are protected: they are 'acts done in the execution of justice, which are compulsive'": Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225, citing Dr Drury's Case (1610) 8 Co Rep 141b at 143a; 77 ER 688 at 691; MacIntosh v Lobel (1993) 30 NSWLR 441 at 459.

65 What the orders involve is no small trespass. As will be seen from its terms, what is required includes (a) refilling an underground double garage, (b) removing concrete slabs under the eastern end of the house and along the entire width of the building's rear wall, (c) removing the concrete poured over most of the backyard, (d) removing a 2.5m high block wall at the rear of the site, (e) removing an external concrete stair and a concrete block lift core shaft, and (f) removing some windows and reinstating others.

66 Moreover, as the owner, Ms Chami has rights to apply for (a) a s 96 modification, which will, if obtained, retrospectively cure the breach of the Act and (b) a building certificate under s 149D which, if obtained, will give some measure of protection: see s 149E. The outcome of the hearing before Dixon C in December 2012 suggests that there is a realistic possibility that much of the work the subject of the demolition orders might be approved by the Court. Further, the Court was told (and the primary judge recorded at [74]) that in fact Ms Chami did apply for a building certificate; that application was refused, and Ms Chami has appealed from that decision. A favourable decision following the exercise of those rights may make lawful, or at least prevent the removal of, work which would otherwise be unauthorised.

67 It follows that those rights enjoyed by Ms Chami are directly affected by the injunction, which requires demolition, within a short timeframe, of that which may be either authorised by s 96 or partially immunised from regulatory action by s 149E.

68 Accordingly, there was a prima facie obligation upon Council to join Ms Chami, as a person directly affected by the mandatory injunctive relief it sought, when it became clear that she was an owner of the land.

69 Council submitted that Ms Chami had waived her right to be joined or heard, in light of the directions hearing on 20 March 2013. But although Ms Chami is taken to have known of (a) the orders Council was seeking over land to which she was in the process of obtaining legal title, and (b) her right to apply to be joined, and (c) the dates of the hearing, that does not displace the onus on the Council as the moving party to join persons affected by the orders it invites the Court to make (or at the least to take other steps so as to accord natural justice to her). That is the ratio of the passages in the Superleague and John Alexander's Clubs decisions reproduced above.

70 Finally, Council submitted that the liberty to apply granted in order 5 altered the position. It did not do so for two reasons. First, it gave no rights at all to Ms Chami, as Council properly accepted; it was confined to the parties. Secondly, liberty to apply cannot be used to alter the substance of what has been ordered: see Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; 70 NSWLR 201 at [50]-[56]. Liberty to apply was entirely appropriate here, where the carrying out of orders might involve matters on which it might be necessary to obtain a direction or a decision. But the grant of liberty to apply to facilitate the working out of orders is not the means by which natural justice is afforded to a person who has not been heard.

71 It follows that for those reasons, the orders must be set aside. The remaining grounds can be dealt with more concisely.

Grounds 2 and 2A

72 Ground 2 alleges error in making orders against Mr Ross knowing that he was not the registered owner of the property. Section 124 authorises orders to be made against persons who are not owners, if they have breached, or threaten to act in breach of the EP&A Act, as was in effect acknowledged in ground 2A. No separate submissions were advanced in support of this ground, which must be rejected.

73 Ground 2A was in these terms:

"Her Honour erred in finding that the appellant continues to actively participate in the building works on the property and exercises control over them notwithstanding the change in ownership, thereby affording her Honour a basis to make orders against the appellant."

74 The gravamen of this ground was that such evidence as there was going to Mr Ross' control over the building works was not before her Honour at the hearing of the trial on the Wednesday afternoon (as distinct from the motions which had occupied the previous 2½ days), and that even if it were, it was not capable of supporting the finding. Council sought and was granted leave to provide supplementary submissions and materials in response, and did so (on 28 February 2014).

75 Mr Ross' submission reflects the form of the hearing before the primary judge. On the Wednesday afternoon, after Mr Ross left the courtroom, counsel formally referred to an opening, and pointed to the evidence he tendered. Indeed, he referred to a foreshadowed application to invoke UCPR r 31.9 (the reference should have been to UCPR r 31.8 but nothing turns on that) to use evidence from the interlocutory applications in the trial. He identified that evidence as the cross-examination of Mr Ross directed to the ownership issue. However, he said that "I would only need that possibly in reply", which appears to have prompted her Honour to say that this was to be treated as an ex parte application; counsel then said that he did not need to rely on the material. Notwithstanding that statement, it is clear that her Honour did rely on that material, expressly, in [84] reproduced above.

76 There is no substance in this point. It is sufficient to observe that had an application been made to rely on the answers given by Mr Ross two days before, it would inevitably have been granted. It was relevant and there was no prejudice. To the extent there was an error in failing to distinguish that the trial did not commence until the Wednesday afternoon, rather than the Monday when it had been set down to commence, it was one which was entirely formal. There was no prejudice to Mr Ross, who was absent, and did not challenge her Honour's refusal of his applications for an adjournment. If this were the only error, it would not amount to a substantial wrong or miscarriage so as to warrant a retrial in accordance with UCPR r 51.53(1). It is therefore not necessary to express a view whether in fact the series of applications made by Mr Ross occupying most of the time which had been set down for the final hearing were to be treated as separate from what occurred on the Wednesday afternoon in his absence.

77 I turn to the second aspect of this ground: was the evidence given capable of supporting the finding? The evidence which Mr Ross gave on the Monday afternoon was that he had an agreement with Ms Chami, for which he charged an hourly rate, to do works in accordance with the original consent. The transcript records that he agreed that he had "an agreement to come back on to do works on the property that are consistent with the original consent", although Mr Ross added something which was not transcribable in giving that answer.

78 Doing the best one can from the available record, that evidence sustained the primary judge's finding. That said, to conclude that Mr Ross exercises "control" is not to identify with precision just what Mr Ross could, or could not, do. Ultimately, at least prior to any order being made, it was open to Ms Chami, as Council positively contended, to exclude Mr Ross from her land, even if so to do was in breach of contract. Insofar as the finding at [84] was necessary to support the conclusions that Mr Ross was a person against whom an order under s 124 could be made which would not be futile, it was supported by the evidence. For the reasons given in response to ground 3, the error lay not in issuing orders against Mr Ross, but in doing so without joining or giving notice to Ms Chami.

Orders in and consequences of this appeal

79 For those reasons, I propose that the appeal be allowed and the orders made on 14 June 2013 be set aside. The proceedings should be remitted to the Land and Environment Court with a view to directions being given to regularise the proceeding. Ms Chami needs to be given, at the very least, an opportunity to be heard in relation to the orders sought by Council to the extent that they directly affect her. Alternatively, if indeed Council only intended the orders to be conditional upon Ms Chami's consent, they should be formulated so that that is clear on their face.

80 It is obvious even from the matters of which this Court is aware that there are special circumstances and complexities in this and related litigation (there are now pending proceedings commenced by the Council against Ms Chami and it may be that something has occurred that would impact upon what has been said in these reasons), and so it is especially inappropriate to constrain the flexibility of the Court below to take steps to regularise the proceedings. It may be that Ms Chami is joined and files a submitting appearance, or makes no submission against the orders. It may be that after being heard the outcome of the exercise of discretion is the same, although it may be different.

81 However, in the ordinary course, a council seeking to enforce a planning law in respect of land ought to join the registered proprietor. If during the pendency of those proceedings there is a transfer of title, the new registered proprietor ought ordinarily be joined. In some circumstances, the court can proceed without joinder, but it is ordinarily essential for the owner to be heard. The decisions referred to above suggest that this case is an exception to the ordinary course presently adopted by councils in such proceedings.

82 Lest there be any doubt about it, the final negative injunction made on 13 August 2012 was not the subject of this appeal and remains in force.

83 Mr Ross has enjoyed some success in this appeal. However, most of the grounds of appeal were abandoned shortly before the hearing. Mr Ross' delay had led to the need to seek an extension of time, and his sustained non-compliance with this Court's orders until shortly before the matter was listed for hearing led to Council's motion for dismissal. On ordinary principles, Mr Ross would be ordered to pay the costs of the two motions made necessary by his delay both before and after commencing his appeal. Rather that exposing the parties to a possibly contentious allocation of costs between the motions and the appeal, an appropriate order is that there be no order as to costs in this Court, with the intention that the parties bear their own costs.

84 The costs discretion at first instance will need to be re-exercised. It is conceivable that what happens in the future may produce a different outcome as to costs. However, to be clear, nothing in these reasons would necessarily prevent a further exercise of discretion that Mr Ross pay the entirety of the Council's costs at first instance. This Court does not enjoy the advantages of the court below in assessing Mr Ross' conduct in these proceedings, but prima facie it would appear that he has committed deliberate and sustained breaches of the obligation he is subject to in s 56(3) of the Civil Procedure Act to participate in the processes of the court and comply with its orders to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

85 The formal orders I propose are: 1. Extend the time within which to appeal. 2. Appeal allowed. 3. Set aside the orders made on 14 June 2013. 4. Remit the proceeding to the Land and Environment Court for determination in accordance with law. 5. Otherwise dismiss the notices of motion filed 3 December 2013 and 13 February 2014. 6. No order as to the costs of the notices of motion or of the appeal, with the intent that the parties bear their own costs of those motions and the appeal.

86 TOBIAS AJA: I agree with the orders proposed by Leeming JA for the reasons he has expressed.

Annexure: Orders made on 14 June 2013

"1. That within 90 days, the Respondent demolish or cause to be demolished such unauthorised works:

(a) the new concrete slab poured for the provision of an unauthorised double garage at the eastern end of the building;

(b) the high level brick window and door openings facing the southern side boundary in the unauthorized double garage;

(c) the vehicular passageway along the northern side of the dwelling created to access the unauthorised double garage referred to above;

(d) the unauthorised rear second floor level balcony slab measuring 1.5m wide spanning across the entire width of the rear of wall of the building;

(e) the new brick door openings to the unauthorised rear second floor level balcony built in lieu of approved bedroom windows;

(f) the concrete block lift core shaft with access internally from an approved double garage on the street front, located on the northern side of the building;

(g) the single window on the northern side wall of the front garage built in the area in which two windows (numbered 5 and 6) were approved;

(h) the new external concrete block lift wall constructed where the first floor side door entrance is depicted on the approved plans;

(i) the external wall concrete balcony slab projections wrapping round the ground, first and second floor levels on the north, west and part of the south western sides of the building;

(j) the building works in the area in which the external rear stairs to the rear courtyard are depicted on the approved plans;

(k) the new concrete stair built adjoining the rear retaining wall to access the rear yard;

(l) the concrete poured so as to cover almost the entire rear yard area;

(m) the building works associated with the external brick walls on the second level which have been built other than in accordance with the approved drawings; and

(n) the 2.5m high concrete block wall constructed at the rear of the site adjoining a natural rock outcrop.

2. That within 90 days the Respondent rebuild and/or reinstate the premises in accordance with the development consent DA325/07 issued 2 April 2008. The rebuild and/or reinstatement works are to comprise the:

(a) reinstatement, including refilling, of the large subfloor area for the provision of an unauthorised double garage in accordance with the plans approved by DA 325/07;

(b) reinstatement of landscaping along the vehicular passageway along the northern side of the dwelling;

(c) reinstatement of the approved bedroom windows in the area in which there has been constructed an unauthorised rear second floor level balcony slab;

(d) reinstatement of the approved garage area where the concrete block lift core shaft has been constructed;

(e) reinstatement of windows number 5, 6 and 12 as depicted on the plans approved by DA 325/07;

(f) reinstatement of the approved first floor side door entrance;

(g) reinstatement of the external rear stairs to the rear courtyard;

(h) reinstatement of landscaping as depicted on approved plans or pre-existing natural features where concrete has been poured so as to cover almost the entire rear yard area;

(i) reinstatement to the external brick walls on the second level in accordance with the approved drawings; and

(j) reinstatement of landscaping as depicted on approved plans or pre-existing natural features where the 2.5m high concrete block wall has been constructed at the rear of the site adjoining a natural rock outcrop.

3. To the extent necessary, the works as identified in orders 1 and 2 are to be carried out in accordance with the recommendations in paragraphs 4.1 to 4.5 in the affidavit of Mr Kevin Leedow sworn 12 April 2013 in these proceedings.

4. The Respondent pay the Applicant's costs of the proceedings as agreed or assessed.

5. Liberty to the parties to apply on five days' notice for any further or other orders (including orders varying or supplementing these orders) upon sufficient cause, such as unforeseen or changed circumstances, being shown."

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Decision last updated: 13 March 2014