Donovan v Mijuskovic

[2007] NSWLEC 650

Land and Environment Court

of New South Wales

CITATION:

Donovan v Mijuskovic [2007] NSWLEC 650

PARTIES:

FIRST APPLICANT:
Dr Raymond Donovan

SECOND APPLICANT:
Associate Professor Leong Chan

FIRST RESPONDENT:
Milenko Mijuskovic

SECOND RESPONDENT:
Kate Melhuish

THIRD RESPODNENT:
Woollahra Municipal Council

FILE NUMBER(S):

40925 of 2007

CORAM:

Biscoe J

KEY ISSUES:

Interlocutory Relief :- ex parte interlocutory injunction to restrain building works said to be unauthorised

DATES OF HEARING:

28 September 2007

EX TEMPORE JUDGMENT DATE:

28 September 2007

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr J Doyle, barrister
SOLICITORS
Thomson Playford

FIRST RESPONDENT:
N/A

SECOND RESPONDENT:
N/A

THIRD RESPONDENT:
Mr M Connell, solicitor
SOLICITORS
Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

28 September 2007

40925 of 2007

DONOVAN AND ANOR. v MIJUSKOVIC & ORS

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an ex parte motion by the applicants in these class 4 proceedings for an interlocutory injunction restraining their next door neighbours, the first and second respondents, until further order from carrying out further building works to property at 168 Sutherland Street, Paddington, without development consent first being obtained for that work. Orders are also sought for substituted service.

2 The Application, which was filed on 19 September 2007, claims declarations that under the Woollahra Local Environmental Plan 1995 certain building works carried out to the subject property, where the first and second respondents reside, were development that could not be lawfully carried out unless and until a development consent under the Environmental Planning and Assessment Act 1979 had first been obtained and was in force; that no valid development consent has been granted for the works; and that by carrying out the works the first and second respondents breached s 76A of the said Act. The Application also seeks an injunction, including an interlocutory injunction, that the first and second respondents be restrained from carrying out any further works to the property without development consent first being obtained for that work or until further order of the Court.

3 The evidence before me indicates that the Application was personally served on the first and second respondents.

4 According to the evidence, an unsuccessful attempt was made to personally serve the notice of motion (now before me), two supporting affidavits sworn on 27 September 2007 by Amanda Kiely and Leong Koon Chan and a covering letter from the applicants’ solicitors. That attempt occurred when a solicitor for the applicants attended the subject property. When she knocked on the door, a man opened it. He was asked whether he was Mr Mijuskovic (the first respondent) and he said “I might be, I might not be. Goodnight.” He then closed the door. The solicitor left the documents, which were in two separate envelopes addressed to each of the first and second respondents, on the doorstep.

5 There was no appearance by the first and second respondents this morning when the notice of motion was returnable. The third respondent, the Woollahra Municipal Council, is represented and takes a neutral position on the motion.

6 The affidavit evidence indicates the following. The first and second respondents reside at the subject property. Building works have been carried out to the subject property both before and after the Application was filed and served. There has been damage to, and encroachments onto, the applicants’ adjoining property from building works on the subject property. No development consent has been granted by the Woollahra Municipal Council for that work.

7 The evidence and submissions are sufficient, in my opinion, to indicate that there is a serious question to be tried. They are also sufficient to indicate that the balance of convenience favours the grant of an interlocutory injunction for a short period, when the first and second respondents will have the opportunity to appear and to present any evidence or submissions as to whether the interlocutory injunction should be continued. The applicants are prepared to give the usual undertaking as to damages. An order for substituted service should be made.

8 I make the following orders.

1. Upon the applicants by their counsel giving to the Court the usual undertaking as to damages, the first and second respondents are restrained from carrying out any further works to the property at 168 Sutherland Street, Paddington, until 4pm on 3 October 2007.

2. The applicants’ notice of motion dated 27 September 2007 is stood over before the Duty Judge at 9.30am on 3 October 2007.

3. Service of the notice of motion, supporting affidavits and these orders may be effected by delivery to 168 Sutherland Street, Paddington, by 3pm today, if personal service is not possible by that time.

4. The time for service of the documents referred to in order 3 is abridged to 3pm today.