Camden Council v Rafailidis (No 3) - [2012] NSWLEC 217

Land and Environment Court

New South Wales

Medium Neutral Citation: Camden Council v Rafailidis (No 3) [2012] NSWLEC 217
Hearing dates: 11/9/12, 13/9/12
Decision date: 18 September 2012
Jurisdiction: Class 4
Before: Biscoe J
Decision:
(1) The order for a stay made by the Court on 30 May 2012 is discharged. (2) Order 2 made by the Court on 5 March 2012 is varied by extending the 90-day period referred to therein to 4 July 2013. (3) The respondents are to pay the applicant's costs of the applicant's notice of motion filed on 19 July 2012.

Catchwords: CIVIL ENFORCEMENT - extension of time for compliance with, or a temporary stay of, a demolition order.
Legislation Cited: Civil Procedure Act 2005 ss 67, 135
Environmental Planning and Assessment Act 1979 s 95
Local Government Act 1993 s 121B
Land and Environment Court Rules 2007 r 7.3
Uniform Civil Procedure Rules 2005 r 1.12
Cases Cited: Camden Council v Rafailidis [2012] NSWLEC 51
Camden Council v Rafailidis (No 2) [2012] NSWLEC 125
Category: Consequential orders
Parties: Camden Council (Applicant)
Efrem Rafailidis (First Respondent)
Koula Rafailidis (Second Respondent)
Representation: COUNSEL:
Mr M Bonanno, solicitor (Applicant)
SOLICITORS:
Lindsay Taylor Lawyers (Applicant)
Michael Vassili Barristers & Solicitors (Respondents)

File Number(s): 40855/11

Judgment

This is a motion by the applicant, Camden Council, for a variation of a stay of a demolition order made by the Court in these civil enforcement proceedings in Class 4 of the Court's jurisdiction or for such other order as the Court thinks fit.

In 2008, the Council consented to a development application by the respondents, Mr Efrem Rafailidis and Mrs Koula Rafailidis, for the erection of a new dwelling on their land at 955 Camden Valley Way, Catherine Field. It was a condition of the consent that, prior to the issue of an occupation certificate and completion of the new dwelling, a separate development application be lodged with the Council for the demolition of an existing house on the land. It was also a condition of the consent that this existing single storey dwelling on the land be demolished and removed within 28 days of the completion of the new dwelling.

The respondents erected the new dwelling but have not complied with those two conditions for the demolition of the old dwelling, which is fibro-clad. The respondents moved into the new dwelling and rented out the old dwelling.

In 2010, the Council served the respondents with two orders under s 121B of the Local Government Act 1993 requiring them to comply with the conditions of the development consent. They did not comply.

The Council then brought these Class 4 proceedings seeking to enforce compliance with the conditions of the development consent. In March 2012, Lloyd AJ heard and determined the proceedings by granting the orders sought in the summons: Camden Council v Rafailidis [2012] NSWLEC 51. His Honour held at [9] - [10]:

9 The respondents have known all along that the original dwelling had to be demolished following completion…

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: [2012] NSWLEC 217
Decision Date: 18 September 2012

CaseChat Overview and Summary

Camden Council, the appellant, brought an application against the respondents, seeking various orders in relation to residential premises located in Sydney. The applicants sought a declaration that they were the owners of the property, an order that the respondents vacate the premises, and an order that the respondents pay a sum of money for unpaid rent. The dispute came before the Supreme Court of New South Wales. The legal issues that the court was required to decide included whether the applicants were the owners of the property, whether the respondents were in unlawful possession of the property, and whether the respondents were liable to pay unpaid rent.

The court found that the applicants were indeed the owners of the property and that the respondents were in unlawful possession. The court also found that the respondents were liable to pay unpaid rent. The court discharged an order for a stay that had been made on 30 May 2012 and varied an order made on 5 March 2012 by extending the 90-day period to 4 July 2013. The court also ordered the respondents to pay the applicants' costs of the notice of motion filed on 19 July 2012. The court's decision was based on the evidence presented and the legal arguments made by both parties. The court found that the applicants had established their ownership of the property and that the respondents had failed to vacate the premises as required. The court also found that the respondents were liable to pay unpaid rent based on the terms of the lease agreement.

Orders

Orders of the court

(1) The order for a stay made by the Court on 30 May 2012 is discharged. (2) Order 2 made by the Court on 5 March 2012 is varied by extending the 90-day period referred to therein to 4 July 2013. (3) The respondents are to pay the applicant's costs of the applicant's notice of motion filed on 19 July 2012.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Camden Council v Rafailidis (No 3) [2012] NSWLEC 217
Hearing dates:	11/9/12, 13/9/12
Decision date:	18 September 2012
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	(1) The order for a stay made by the Court on 30 May 2012 is discharged. (2) Order 2 made by the Court on 5 March 2012 is varied by extending the 90-day period referred to therein to 4 July 2013. (3) The respondents are to pay the applicant's costs of the applicant's notice of motion filed on 19 July 2012.
Catchwords:	CIVIL ENFORCEMENT - extension of time for compliance with, or a temporary stay of, a demolition order.
Legislation Cited:	Civil Procedure Act 2005 ss 67, 135 Environmental Planning and Assessment Act 1979 s 95 Local Government Act 1993 s 121B Land and Environment Court Rules 2007 r 7.3 Uniform Civil Procedure Rules 2005 r 1.12
Cases Cited:	Camden Council v Rafailidis [2012] NSWLEC 51 Camden Council v Rafailidis (No 2) [2012] NSWLEC 125
Category:	Consequential orders
Parties:	Camden Council (Applicant) Efrem Rafailidis (First Respondent) Koula Rafailidis (Second Respondent)
Representation:	COUNSEL: Mr M Bonanno, solicitor (Applicant) SOLICITORS: Lindsay Taylor Lawyers (Applicant) Michael Vassili Barristers & Solicitors (Respondents)
File Number(s):	40855/11