City of Botany Bay Council v Zhou

[2011] NSWLEC 144

Land and Environment Court

New South Wales

Medium Neutral Citation:

City of Botany Bay Council v Zhou [2011] NSWLEC 144

Hearing dates:

22 August 2011

Decision date:

22 August 2011

Before:

Craig J

Decision:

1. The Notice of Motion filed by the applicant on 21 June 2011 is dismissed.

2. Orders made on 2 March 2011 are set aside.

3. I make Orders in accordance with the document entitled "Consent Orders" signed by the solicitor for the applicant and by the first respondent, initialled by me and placed with the Court papers.

4. There will be no order as to costs.

Catchwords:

PROCEDURE - final orders made on 2 March 2011 set aside by consent - Uniform Civil Procedure Rule 36.15 - consent orders made for fire safety work - work to be carried out by applicant and reimbursed by the respondent.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Uniform Civil Procedure Rules, r 36.15

Category:

Principal judgment

Parties:

Botany Bay City Council (Applicant)
Weisen Zhou (First Respondent)
Nicola Finamore (Second Respondent)

Representation:

Mr S Shneider, Solicitor (Applicant)
Self represented (First Respondent)
No appearance (Second Respondent)
Houston Dearn O'Connor Solicitors and Attorneys (Applicant)
Self represented (First Respondent)
No appearance (Second Respondent)

File Number(s):

40652 of 2010

EX TEMPORE Judgment

1. On 2 March 2011, I made orders requiring the respondents to carry out fire safety works at premises known as 20 Rolfe Street, Rosebery. These orders were made consequent upon a summons filed by Botany City Council ( the Council ) claiming that the respondents had breached the Environmental Planning and Assessment Act 1979 by failing to comply with an order made under s 121B of that Act requiring nominated fire safety works to be carried out to the premises. The respondents were said to operate a boarding house within those premises.

1. At the time of making the orders that I did on 2 March last, there was no appearance by or on behalf of either of the respondents. However, I was provided with a document described as "Consent Order" and which had been signed by the first respondent. I made orders in accordance with those proposed in that document. It appears that the orders then made have not, to this day, been observed.

1. Before me today is a notice of motion by the Council in which it seeks an order that the first respondent be dealt with for contempt of Court by reason of her failure to obey the orders made on 2 March. Also before me is a notice of motion by the first respondent, Ms Zhou, seeking to set aside the orders that were made on 2 March.

1. As a result of discussions had both before and during a short adjournment of today's proceedings, the parties have sensibly agreed upon the means by which their dispute is to be resolved. They are to be commended upon reaching a solution. This is because both the Council's initial proceedings and its summons for contempt were intended to be coercive in nature by seeking to ensure that a sufficient smoke warning and alarm system was installed in the subject premises for the safety of its occupants.

1. The agreement that has been reached necessitates the setting aside of the orders that I made on 2 March last. My power so to do is found in Uniform Civil Procedure Rules, r 36.15. By subclause (2) of that rule, it is provided that a judgment or order of the court may be set aside by further order if the parties to the proceedings consent. The agreement that has been reached between the parties to the present proceedings is that the March orders be set aside. As a consequence, I am able to accede to their request and, given the substantive agreement reached, it is appropriate that I do so. That has the consequence that the Council's notice of motion for contempt be dismissed. It is accepted by the Council that this should be done.

1. I have been provided with a document entitled "Consent Orders", dated today and signed both by the solicitor for the Council and by Ms Zhou. Ms Zhou informs me that she has read the document, understood it and the obligations that it imposes upon her. In essence, it involves the Council taking responsibility for carrying out the installation of fire warning and smoke alarm systems within the subject premises but doing so through the contractor nominated by Ms Zhou. Once the work has been completed Ms Zhou accepts responsibility for reimbursing the cost to the Council of that work. The agreement between the parties is that repayments will be made quarterly, the amount of those repayments being shown as a charge on the quarterly rate notices otherwise forwarded by the Council to her in respect of the subject premises. This, so it seems to me, provides a satisfactory solution to the concerns founding the Council's proceedings. It also satisfies me that it is appropriate to set aside the orders that I had earlier made.

1. In accordance with the agreement reached between the parties I therefore make the following orders.

1. The Notice of Motion filed by the applicant on 21 June 2011 is dismissed.

2. Orders made on 2 March 2011 are set aside.

3. I make Orders in accordance with the document entitled "Consent Orders" signed by the solicitor for the applicant and by the first respondent, initialled by me and placed with the Court papers.

4. There will be no order as to costs.

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