Diab v Cavasinni (No 3)

Land and Environment Court

New South Wales

Medium Neutral Citation:

Diab v Cavasinni (No 3) [2020] NSWLEC 119

Hearing dates:

3 – 4 February, 20 May, 24 June 2020

Date of orders:

20 August 2020

Decision date:

20 August 2020

Jurisdiction:

Class 4

Before:

Robson J

Decision:

See orders at [100]

Catchwords:

ENVIRONMENT AND PLANNING — Consent — Works allegedly undertaken otherwise than in accordance with development consent — Previous direction of the Court required the question of breach to be heard and determined separately from any other question including the appropriate remedy and relief

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW) s 4.56

Uniform Civil Procedure Rules 2005 (NSW) Pt 28

Cases Cited:

Diab v Cavasinni [2019] NSWLEC 204

Diab v Cavasinni (No 2) [2020] NSWLEC 32

Texts Cited:

Land and Environment Court COVID-19 Pandemic Arrangements Policy

Category:

Principal judgment

Parties:

Dolly Diab (Applicant)
Maria Cavasinni (First Respondent)
Francesco Cavasinni (Second Respondent)
Cavcorp Australia Pty Ltd (Third Respondent)

Representation:

Counsel:
J Hutton (Applicant)
J Doyle with R Kumar (Respondents)

Solicitors:
Sparke Helmore (Applicant)
DC Balog and Associates (Respondents)

File Number(s):

2017/00379855

Publication restriction:

Nil

Judgment

1. These civil enforcement proceedings commenced on 15 December 2017 essentially involve a dispute between neighbours. By way of amended summons filed on 16 February 2018, Mrs Dolly Diab, the registered proprietor (‘applicant’) of 29 Nelson Parade, Hunters Hill seeks declaratory and consequential mandatory injunctive relief against each of Mrs Maria Cavasinni, Mr Francesco Cavasinni and Cavcorp Australia Pty Ltd (collectively, the ‘respondents’) in relation to certain construction and development undertaken at 27 Nelson Parade, Hunters Hill.

2. Although the amended summons and points of claim filed by the applicant seek detailed relief, the issue presently before the Court involves a preliminary determination as to whether certain building works undertaken at 27 Nelson Parade (‘Cavasinni property’) were contrary to a development consent granted in 2010. As such, apart from making factual findings, this judgment does not involve consideration of appropriate relief.

Background

3. Although I summarised the background to the dispute when I dismissed an application made by the respondents to adduce further expert evidence in Diab v Cavasinni (No 2) [2020] NSWLEC 32 at [4]-[11], some further explication of the procedural history and background facts is necessary.

4. The applicant is the registered proprietor of 29 Nelson Parade (‘Diab property’) comprising a two-storey dwelling house that steps down from Nelson Parade towards Parramatta River, and is connected to Nelson Parade by way of a right of carriageway being a concrete driveway running across the northern part of the adjacent Cavasinni property at 27 Nelson Parade.

5. The first respondent, Mrs Cavasinni, is the registered proprietor of the Cavasinni property; the second respondent, Mr Cavasinni, is a property developer and the husband of the first respondent; and the third respondent is a company owned and controlled by the second respondent, which holds a builder’s licence issued by NSW Fair Trading.

6. The Cavasinni property is immediately to the east of the Diab property and is situated between the…