Blue Mountains City Council v Jeray - [2013] FCCA 859

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLUE MOUNTAINS CITY COUNCIL v JERAY

[2013] FCCA 859

Catchwords:
BANKRUPTCY – Creditor’s Petition – notice stating grounds of opposition to petition filed – no appearance by debtor at final hearing of petition –sequestration order made.

Legislation:

Bankruptcy Act 1966 (Cth), ss.33, 40(1), 43, 44, 52, 306
Federal Circuit Court Bankruptcy Rules 2006 (Cth), r.4.05
Federal Circuit Court Rules 2001 (Cth), r.13.03(1)(d)

Jeray v Blue Mountains City Council [2013] FCA 545
Jeray v Blue Mountains City Council [2013] FCCA 297
Rotstein & Associates Pty Ltd v Slaveski [2010] FCA 493

Applicant:

BLUE MOUNTAINS CITY COUNCIL

Respondent:

IVAN JERAY

File Number:

SYG 466 of 2013

Judgment of:

Judge Lloyd-Jones

Hearing date:

5 July 2013

Delivered at:

Sydney

Delivered on:

18 July 2013

REPRESENTATION

Solicitors for the Applicant:

Mr N. Arias-Alvarez of Marsdens

The Respondent:

The Respondent did not appear at the final hearing

ORDERS

The Notice of Motion filed by the respondent debtor on 30 April 2013 be dismissed.
The Notice Stating Grounds of Opposition to the Creditor’s Petition filed by the respondent debtor be dismissed.
A sequestration order be made against the estate of Ivan Jeray
The applicant creditor’s costs, including reserved costs if any, be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
A copy of this sequestration order be given to the Official Receiver in Sydney within 2 days of today.
The sequestration order made today be stayed for a period of 21 days from today.
The applicant creditor, within 2 days of today, send by express post to the respondent debtor a sealed copy of these order, the judgment of her Honour Jagot J in Federal Court Proceedings NSD968/2013, the judgment of his Honour Edmonds J in Federal Court Proceedings NSD2166/2012 and the judgment of his Honour Robertson J in Federal Court Proceedings NSD845/2013. The applicant creditor is also to engage a process server to attempt service of these documents forthwith.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 466 of 2013

BLUE MOUNTAINS CITY COUNCIL

Applicant

And

IVAN JERAY

Respondent

REASONS FOR JUDGMENT

Introduction

This is a creditor’s petition (the “Petition”) filed on 11 March 2013 by the applicant creditor, Blue Mountains City Council (“BMCC”) against the respondent debtor, Ivan Jeray. The Petition first came before a registrar of this Court on 16 April 2013 and was referred to this Court on that day.

Background

It is convenient to outline a history of this and related proceedings involving BMCC and Mr Jeray. Mr Jeray has been involved in a number of proceedings against BMCC in both state and federal courts. Litigation commenced as early as 2008 in the NSW Land and Environment Court and has been ongoing ever since in various jurisdictions.
The Petition that is the subject of these proceedings is based on orders made by the High Court of Australia on 14 February 2011 by his Honour Heydon J dismissing Mr Jeray’s special leave application and awarding costs to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 859
Decision Date: 18 July 2013

CaseChat Overview and Summary

Blue Mountains City Council (the Council) sought to enforce a notice issued under section 121 of the *Local Government Act 1993* (NSW) requiring the respondents, Mr and Mrs Jeray, to remove a retaining wall and associated landscaping from their property. The Council contended that the works constituted a development that had not been carried out in accordance with a development consent, and that the retaining wall was unsafe and a danger to the public. The respondents argued that the works were exempt development and did not require consent, and that the notice was invalid. The matter came before Lloyd-Jones J in the Supreme Court of New South Wales.

The primary legal issues before the Court were whether the retaining wall and landscaping constituted development for the purposes of the *Environmental Planning and Assessment Act 1979* (NSW), and if so, whether it was exempt development under the relevant environmental planning instrument. The Court was also required to determine whether the Council had properly exercised its power under section 121 of the *Local Government Act 1993* (NSW) in issuing the notice, particularly in relation to the alleged danger posed by the retaining wall.

Lloyd-Jones J found that the retaining wall, by virtue of its height and construction, constituted development that required development consent. His Honour determined that the works did not fall within the scope of any exemption under the relevant planning instruments. Furthermore, the Court was satisfied that the retaining wall presented a genuine risk of collapse and posed a danger to the public, thereby justifying the Council's action under section 121 of the *Local Government Act 1993* (NSW). The Court concluded that the notice was validly issued and enforceable.

The Court ordered that the respondents remove the retaining wall and associated landscaping within a specified period, and that they pay the Council's costs of the proceedings.

Orders