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 1.12Cases Cited: Camden Council v Rafailidis [2012] NSWLEC 51
Camden Council v Rafailidis (No 2) [2012] NSWLEC 125Category: 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…
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- Case
- [2012] NSWLEC 217
- Decision Date
CaseChat Overview and Summary
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
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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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