Bobolas v Waverley Council

Case [2014] NSWCA 131

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Bobolas v Waverley Council [2014] NSWCA 131
Hearing dates:10 April 2014
Decision date: 10 April 2014
Before: Meagher JA at [1];
Gleeson JA at [1];
Sackville AJA at [1]
Decision:

(1) Order that the application made by the applicants by notice of motion filed on 9 April 2014 seeking to set aside the orders of Ward JA be dismissed.

(2) Order that the applicants pay the respondent's costs of the application.

[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: PRACTICE AND PROCEDURE - interlocutory application - review under Supreme Court Act 1970, s 46(4) of refusal to grant stay of execution pending appeal - no reviewable error of the kind to which s 46(4) is directed - application dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), s 63(2)
Local Government Act 1993 (NSW), ss 6, 124, 191, 200, 678
Supreme Court Act 1970 (NSW), s 46
Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 51.5
Cases Cited: Alexander v Cambridge Credit Corporation Ltd [1985] 2 NSWLR 685
Bobolas v Waverley Council [2012] NSWCA 126
Donnelly v Australia & New Zealand Banking Group Ltd [2014] NSWCA 43
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
Patrick v Howorth [2002] NSWCA 285
Ross v Lane Cove Council [2014] NSWCA 50
Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; 60 NSWLR 143
Waverley Council v Bobolas (No 3) [2014] NSWLEC 16
Waverley Council v Bobolas (No 4) [2014] NSWLEC 35
Category:Interlocutory applications
Parties: Elena Bobolas (First Applicant)
Liana Bobolas (Second Applicant)
Mary Bobolas (Third Applicant)
Waverley Council (Respondent)
Representation: Counsel:
Self-represented (Applicants)
P Clay SC (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):2014/80335
 Decision under appeal 
Jurisdiction:
9003
Citation:
Bobolas v Waverley Council [2014] NSWCA 78
Date of Decision:
2014-03-25 00:00:00
Before:
Ward JA
File Number(s):
2014/80335

Judgment

  1. THE COURT: The applicants (Mary Bobolas and her daughters, Elena and Liana) are the occupants of premises in Boonara Avenue, Bondi which are owned by Mary Bobolas. On 4 March 2014 Biscoe J made orders requiring the respondent Council to remove significant accumulations of waste stored in the outside areas of that property. The applicants have appealed from those orders. On 14 March 2014 Schmidt J made orders staying the operation of the orders of Biscoe J until further order. On 25 March 2014 Ward JA discharged those orders with effect on 31 March 2014. The applicants, by…

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AGLC
Bobolas v Waverley Council [2014] NSWCA 131
Case
[2014] NSWCA 131
Decision Date

CaseChat Overview and Summary

Bobolas and others (the applicants) sought a review under section 46(4) of the *Supreme Court Act 1970* (NSW) of an interlocutory decision by Ward JA refusing to grant a stay of execution pending an appeal. The respondent was Waverley Council. The application concerned the applicants' attempt to set aside the orders made by Ward JA.

The primary legal issue before the Court of Appeal was whether Ward JA had made a reviewable error of the kind contemplated by section 46(4) of the *Supreme Court Act 1970*. This section permits a review of interlocutory decisions in limited circumstances, typically where there is a demonstrable error of law or a failure to exercise a discretion.

The Court of Appeal found that no such reviewable error had been demonstrated. The applicants had not established that Ward JA's refusal to grant the stay was based on an error of law or a failure to exercise her discretion. Consequently, the Court dismissed the applicants' motion.

The Court ordered that the application made by the applicants be dismissed and that the applicants pay the respondent's costs of the application.

Orders

Orders of the court

(1) Order that the application made by the applicants by notice of motion filed on 9 April 2014 seeking to set aside the orders of Ward JA be dismissed.

(2) Order that the applicants pay the respondent's costs of the application.

[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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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