El-Saeidy v NSW Land & Housing Corporation (No 4)

[2013] NSWSC 1554

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

El-Saeidy v NSW Land & Housing Corporation (No 4) [2013] NSWSC 1554

Hearing dates:

17/10/2013

Decision date:

28 October 2013

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

(1) The plaintiff's notices of motion filed 31 July 2013 and 17 October 2013 are dismissed.

The Court makes declarations that:

(2) The defendant has complied with the orders of the Court made on 9 August 2011.

(3) The defendant has complied with agreement referred to at paragraph 3 of the Judgment of 9 August 2011 at (b), (c) and (e).

The Court further orders that:

(4) The plaintiff and his family are to move back into XX XXXXX X XXXX, Villawood within 28 days; and

(5) In the event the plaintiff does not comply with (4) above, the defendant is relieved from compliance with Order 3 made on 12 December 2011 by consent, and Order 4 made on 28 August 2012 by consent.

(6) The plaintiff is to pay the defendants costs as agreed or assessed.

Catchwords:

PROCEDURE - application for the review of registrar's decision - application to vacate hearing date - application for extension of time to file evidence

PROCEDURE - judgments and orders - in general - whether previous orders of the court have been complied with - whether the defendant has carried out remedial work

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

El-Saeidy v NSW Land & Housing Corporation [2012] NSWSC 876
Tomko v Palasty (No 2) [2007] NSWCA 369

Category:

Consequential orders

Parties:

Fawzi El-Saeidy (Plaintiff)
NSW Land & Housing (Defendant)

Representation:

Counsel:
D Hawkins (Plaintiff)
E Elbourne (Defendant)
Solicitors:
JK Solicitors (Plaintiff)
McCabes Lawyers (Defendant)

File Number(s):

2009/294748

Publication restriction:

Nil

Judgment

1. HER HONOUR: This matter has had a protracted history and has taken up a lot of court time and incurred a large amount of legal expenses. I intent to write brief reasons. There are a further two notices of motions before this Court for determination. The current main dispute concerns the remedial work carried out in the front and back yards.

1. After delivering a substantive judgment on 9 August 2011. On 22 September 2011, I ordered that NSW Land & Housing Corporation (Housing) was to carry out the following work on the premises the subject of a residential tenancy agreement between the defendant as lessor and the plaintiff as lessee, as follows:

"Remove and replace all the asbestos cement wall linings and all asbestos cement sheets and linings of ceilings in the bathroom, kitchen and laundry; and remove and replace all the asbestos linings on the eaves and in the electricity meter box."

1. During the substantive hearing Mr El-Saeidy sought orders that Housing carry out the following work:

(b) Collect and remove all the loose pieces of broken asbestos cement from the front and back yards;

(c) Excavate, remove and replace all the topsoil in the front and back yards;

...

(e) Further and other work necessary to ensure that the house and front and back yards are decontaminated and can be used and occupied without undue risk of inhalation of asbestos fibres.

1. The Housing agreed to carry out this work outlined in paragraphs (b), (c) and (e) above. Housing also agreed to provide adequate alternative accommodation to the plaintiff pending removal of the asbestos from the premises and garden while the work is carried out and until a clearance certificate has been obtained.

1. Since the substantive judgment was handed down Mr El-Saeidy has sought to relitigate various matters but I have declined to do so as I held that those issues had already been decided: see El-Saeidy v NSW Land & Housing Corporation [2012] NSWSC 876. There remained a disagreement over where Mr El-Saeidy and his family would reside while the asbestos was removed from the premises.

Orders made on 12 December 2011

1. On 12 December 2011, the matter came before me again. On that day by consent I ordered that Housing was relocate the plaintiff and his family to an alternative 3-bedroom property for the duration of the works to XX XXXX XXXX, Villawood, subject to Mr El-Saeidy's inspection; Housing was to pay the costs of the plaintiff's removal into and out of the premises (including packing if necessary); and Housing guarantees to relocate Mr El-Saiedy to XX XXXX XXXX, Villawood (the temporary premises) after the completion of the works within 7 days on the same lease terms." Also on 12 December 2011 (not by consent), I ordered that Housing was permitted to use it's own contractors to undertake the work and that Mr El-Saeidy's possessions were to be relocated for the duration of the works."

Events after 12 December 2011

1. On 7 February 2013, Mahen De Silva wrote three further reports about "asbestos contamination" arising from his 13 December 2012 and 15 January 2013 inspections. Mr De Silva's colleague Laxman Dias provided an asbestos identification report on the same date about the same samples.

1. On 7 February 2013, Safe Work & Environment ("SWE"), on behalf of Housing, carried out an inspection of the premises following removal of asbestos cement linings from the meter box and dust/debris from inside the hallway storage cupboards. A clearance certificate was issued by SWE on behalf of Housing regarding the asbestos removal, air monitoring and clearance inspection of 12 and 13 November 2012, air monitoring and clearance inspection of 4, 5, 6 and 7 December 2012 and additional clearance inspection of 7 February 2013.

1. On 11 February 2013, SWE issued a clearance certificate regarding the asbestos removal. This certificate was served on Mr El-Saeidy's solicitors, who were advised that the works were complete and they were requested to comply with Order 2 of the consent orders dated 27 August 2012 that the plaintiff relocate back to the premises.

1. On 22 February 2013, Mr El-Saeidy's solicitor served the reports of Mr De Silva dated 7 February 2013.

1. On 25 March 2013, Housing advised by fax to Mr El-Saeidy's solicitors that an occupational hygienist would be attending for further inspection and testing of the premises proposing dates of 2 or 3 April 2013 and inviting Mr De Silva to be present. No response was received.

1. On 26 March 2013, Mr El-Saeidy instructed his solicitors that until all documents requested from Housing's solicitors and work requested by Mr De Silva in his 7 February 2013 reports were carried out, that Mr De Silva would not attend any further inspection of the premises.

1. On 2 April 2013, JK Solicitors ceased to act for the plaintiff. On 3 April 2013, Housing's solicitors faxed the plaintiff's solicitors requesting a response to the 25 March 2013 facsimile. No response was received.

1. On 19 April 2013, Housing wrote to Mr El-Saeidy proposing a joint final inspection of the premises by a hygienist of Mr El-Saeidy's choosing, with a pre-inspection meeting to discuss joint testing regime and agreement on a date for inspection. Housing requested a response by 26 April 2013. No response was received.

1. On 20 May 2013, Housing wrote to Mr El-Saeidy referring to the lack of response to previous correspondence dated 25 March 2013, 3 April 2013, 12 April 2013 and 19 April 2013 and repeating the proposal made on 19 April 2013 and requested a response by 31 May 2013.

1. On 22 May 2013, Mr El-Saeidy's new solicitors wrote to Housing making various demands and refusing the offer of 25 March 2013 for Mr De Silva to attend with an independent hygienist, Phillip Clifton when he was to conduct the final inspection for a clearance certificate.

1. On 1 July 2013, Housing wrote to Mr El-Saeidy's solicitors confirming that Mr El-Saeidy had rejected the offer of a joint inspection and testing and advised Mr El-Saeidy's solicitor that an independent hygienist (Mr Clifton) had been retained and a report was being prepared. The reasons that I have included Housing's offer for Mr De Silva to be present at the inspections and Mr El-Saeidy's rejection of the offers is because Mr El-Saeidy has subsequently sought that Mr De Silva inspect the property before he moves in. There was ample opportunity for that to occur and now it is too late.

1. On 20 July 2013, Mr Clifton conducted a visual inspection and airborne asbestos fibre monitoring of the premises. He collected samples for testing for the report, including dust samples and soil samples.

1. On 23 July 2013, Environmental & Safety Professionals ("ESP"), a NATA accredited laboratory tested the soil samples collected by Mr Clifton from the front and rear yards and under the house eaves of the premises. No asbestos was detected except from the soil sample from the rear south eastern yard.

1. On 23 July 2013, ESP tested the air filters obtained by Mr Clifton from within the house, at the front of the house, on the porch balustrade and the rear yard on the clothesline of the premises. No asbestos was detected.

1. On 24 July 2013, ESP tested the dust samples obtained by Mr Clifton from the kitchen, laundry, bathroom, hall cupboard and roof space of the premises. No asbestos was detected.

1. On 14 August 2013, Mr Clifton's report dated 14 August 2013 confirmed that the work on the premises was finalised. Mr Clifton noted that the soil from the south eastern corner of the yard had a small quantity of fibres, which was more than likely from the stormwater runoff from the neighbour's garage roof. In summary Mr Clifton noted:

"...(except south east rear yard soil sample) ... house and external areas ... are safe to access for normal occupation in regard to asbestos containing and contaminated materials."

Mr Clifton noted in regards to fibres in the south eastern area of the rear yard soil sample that:

"... are much larger than respirable size fibres and at that size do not pose a health risk to persons using the back yard."

1. Mr Clifton recommended soil removal and resampling of the south eastern area even though the asbestos was below the root zone of the grass and was therefore generally inaccessible.

1. On 20 August 2013, the soil from the south eastern corner of the rear yard of the premises was removed and replaced. Samples were then taken and tested and no asbestos was detected. On 21 August 2013, Mr Clifton prepared his report on the soil remediation. I shall refer to this report in more detail shortly.

The current motions

(1) Mr El-Saeidy's motion

1. On 31 July 2013, Mr El-Saeidy filed a notice of motion seeking the orders that the defendant comply with the orders of 9 August 2011 relating to the yard by excavating and removal of at least 200mm of topsoil of all front yard and back yard of the property XX XXXX XX, Villawood and replace with uncontaminated certified new clean virgin top soil in all front yard and back yard by removing all loose asbestos material and loose asbestos fibres inside the house; place certified clean topsoil in the subfloor area after removal of the asbestos materials from the sub floor area; to remove all other hazardous materials now present in the topsoil of all front yard and back yard of the premises including synthetic mineral fibres, lead and bituminous materials; replace the turf in the front and back yards with certified clean turf after the new certified clean topsoil has been laid replace all carpet located in the house in the contaminated areas of the premises and clean up floor under the carpet from any asbestos materials and loose asbestos fibres ("the works").

1. Mr El-Saeidy also seeks an order that the works are to be carried out by a recognised WorkCover NSW licenced friable licensed contractor whose name, contact details and licence number can be verified via WorkCover NSW and the defendant to provide this information to the plaintiff and produce certificates. Mr El-Saeidy relies on a report of Mr De Silva dated 7 February 2013 and seeks payment for obtaining that report and seeks an order that Mr De Silva supervise the works above. So far as these last issues are concerned, the argument that Mr De Silva perform remedial works has already been decided and it is res judicata. On 12 December 2011, I ordered that Housing was permitted to use its own contractors to undertake the remedial works.

1. On 9 August 2011, I ordered that Housing pay damages in the sum of $4,000 to Mr El-Saeidy for disappointment and distress. Mr El-Saiedy now seeks that Housing pay to him additional damages for discomfort and the loss of enjoyment of home life.

(2) Housing's motion

1. On 13 August 2013, Housing filed a notice of motion. It now seeks orders and declarations as follows:

(1) The plaintiff's notice of motion filed on 31 July 2013 is dismissed.

(2) A declaration that the defendant has complied with the orders of the Court made on 9 August 2011.

(3) A declaration that the defendant has complied with agreement referred to at paragraph 3 of the Judgment of 9 August 2011 at (b), (c) and (e).

(4) The plaintiff and his family are to move back into XX XXXXX X XXXX, Villawood within 14 days; and

(5) In the event the plaintiff does not comply with (4) above, the defendant is relieved from compliance with Order 3 made on 12 December 2011 by consent, and Order 4 made on 28 August 2012 by consent.

1. Both these motions were initially listed before me for hearing on 22 August 2013. On the day of the hearing Mr El-Saeidy filed another notice of motion, which has now been withdrawn.

1. On 22 August 2013, the experts held a joint conference. Agreement was reached on various issues. The only remaining outstanding issue that remained was in relation to the remedial work carried out to the yard. I granted an adjournment on the basis that consent orders were to be forwarded to my chambers that afternoon. It did not occur and regrettably, consent orders could not be agreed. The matter was relisted for hearing before me at 9.00 am on 5 September 2013. On that day these motions were specially fixed for hearing on 17 October 2013.

1. After the meeting between the experts on 22 August 2013, Mr Clifton prepared a report addressing the concerns in relation to the presence of asbestos in the yard of the premises that had been raised by Mr De Silva. On 5 September 2013, this report was served on the plaintiff's solicitor.

1. On 13 September 2013, the plaintiff filed another motion that was listed before the Registrar. The Registrar ordered the plaintiff to serve evidence in reply to the material contained in the affidavit of Leighton James Hawkes dated 6 September 2013 by 28 September 2013 (that attached another copy of Mr Clifton's report).

1. On 27 September 2013, the plaintiff sought an extension of time to serve evidence in reply.

1. On 30 September 2013, the Registrar ordered Housing to file and serve all affidavit evidence that it intended to rely upon by 12.00 pm on 4 October 2013 and should the plaintiff's solicitor cease to act then a notice of ceasing to act was to be filed by 4 October 2013. The matter was stood over to 8 October 2013.

1. On 8 October 2013, the Registrar dismissed the plaintiff's notice of motion and confirmed the hearing date of 17 October 2013.

1. On 11 October 2013, the plaintiff's former solicitors, JK Solicitors, filed a notice of appearance.

1. On the morning of this hearing, the plaintiff by notice of motion filed 17 October 2013 sought a review of the Registrar's decision of 8 October 2013 denying an extension to file further affidavit evidence and refusing the adjournment.

Review

1. Rule 49.19 of the Uniform Civil Procedure Rules 2005 provides:

"49.19 Review of registrar's directions, certificates, orders, decisions and other acts

If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit."

1. In Tomko v Palasty (No 2) [2007] NSWCA 369 Hodgson (with whom Ipp JJA agreed) stated (at [6]-[8]):

6 I agree that a review of a decision of a registrar is not an appeal, subject to s 75A of the Supreme Court Act; and that in such a review a court must exercise its own discretion.

7 In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a registrar's decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so.

8 In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v. The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one.

1. Upon review of the Registrar's decision, the approach I should take is that I should inform myself of all the material before the Registrar at the time when he made the decision and the Registrar's decision itself. I should make my own decision based on the material before me after having the benefit of counsel's submissions.

1. After taking into account the matters mentioned above, I came to the view that in the exercise of my discretion I would not grant an adjournment nor should I allow the plaintiff to rely on a further report of Mr De Silva. The short reasons for this decision are as follows. Since 5 September 2013, the plaintiff had the opportunity to put on further evidence of Mr De Silva. He did not do so. In an effort for this Court to understand whether any issues could be agreed upon in relation to the yard, I requested that the experts, Mr Clifton and Mr De Silva, give joint evidence at the hearing. By the time the luncheon adjournment approached it became clear that no agreement could be reached. Mr De Silva's additional report that the plaintiff sought to rely upon provided results of his retesting of the soil samples taken in December 2012 and had already been analysed in Mr De Silva's laboratory. The results were contained in a report dated 7 February 2013. That report is in evidence.

1. Just prior to the luncheon adjournment, counsel for Mr El-Saeidy provided a copy of a bundle that that comprised of 2013 Amendment of Assessment of Site Contamination NE PM 1999 together with Schedule B1, Guideline on Investigation Levels for Soil and Groundwater (Ex A) that has been referred to by Mr De Silva in evidence. It had not been served before then. The experts agreed that these guidelines applied from 25 May 2013. Over the luncheon adjournment counsel for Housing and I read those documents.

1. When Court resumed for the afternoon, counsel for Housing submitted that it would be prejudicial to Housing to allow this evidence to be relied upon at this hearing. Even though Housing's expert, Mr Clifton, was in court, counsel submitted she was not in a position to properly address the issues raised by the guidelines and that the plaintiff had ample opportunity to serve a further report. If it had done so earlier it would have allowed for Housing to retest its samples should that have been thought necessary. It was now too late.

1. It has become clear that Housing would be unable to address the issues raised by Mr De Silva in his latter report. It was my view that Housing was prejudiced and this was caused by delay in the plaintiff's camp in serving Mr De Silva's report and the guidelines. Hence, I decided the further report of Mr De Silva should not be relied upon nor should a further adjournment be granted. I also took into account the amount of court time and legal expenses incurred and to permit another adjournment would be too onerous. I will say something about costs and use of resources expended in these proceedings later in this judgment.

1. Both parties have obtained experts' reports in relation to the removal of the asbestos from the yard of the premises. Mr El-Saiedy relies on the report of Mr De Silva dated 7 February 2013. Housing relied on the reports of Mr Clifton dated 14 August 2013 and 3 September 2013.

Mr De Silva's report dated 7 February 2013 - soil samples

1. In Mr De Silva's report dated 7 February 2013 he referred to 56 soil samples he collected front and rear yards of the premises. He indicated the position of where each sample was taken was plotted each on a grid diagram.

1. The analysis of those samples are as follows:

No asbestos

1. Samples No 2 to 8, 10 to 25, 27, 28, 30 to 34, 37 to 41, 43 to 46, 51 to 54 and 56 resulted in no asbestos being detected.

1. Sample No 1 refers to asbestos being present in the southeastern corner of the rear yard. This area rectified in the remedial work carried out on August 2013. Sample No 1 is no longer relevant.

Asbestos

1. There are nine samples where the presence of asbestos was detected.

1. Samples 9 and 29 returned a result of chrysotile asbestos and amosite asbestos being detected in bonded form. Sample 26 returned a result of chrysotile in bonded form and in fibro plaster cement material and amosite and crocidolite asbestos in bonded form. Samples 35, 36, 42, 47, 48, 50 returned a result of chrysotile asbestos detected in bonded form. Sample 55 returned a result of chrysotile asbestos in bonded form and amosite asbestos in loose fibre form.

1. Overall, there was no detection of loose fibres detected in soil/dust and the relevant asbestos types except in sample 55. In the eight samples where asbestos was detected was in the bonded form. (My emphasis added)

1. It should be noted that no readings of the percentage of asbestos detected was included in Mr De Silva's report.

Mr Clifton's report dated 3 September 2013 - internal and soil samples

1. On 3 September 2013, Mr Clifton wrote his report addressing the concerns in relation to the year raised by Mr De Silva in the conference on 22 August 2013.

1. On 26 August 2013, a further site inspection and sample collection was conducted by Mr Clifton of the hallway cupboards, picture rails, architraves and meter cabinets to address the concern raised by Mr De Silva in his reported dated 22 August 2013 of soil sampling of the rear and front years s per Mr De Silva's sample sites and a visual inspection of the sub-floor area was conducted. No asbestos was detected in the "...house and external areas... are safe to access ..."

1. A visual inspection of the ground surfaces in the front and rear yard areas found these ground areas to be covered with grass with no areas of exposed soil being present. No visible asbestos containing/contaminated materials were sighted on the grassed ground surfaces in the front and rear yard at the site.

Soil samples

1. Mr Clifton used the site sample location plan complied by Mr De Silva and the scale shown between his sample location as shown on the plan. Mr Clifton estimated the locations of the remaining 10 soil samples that Mr De Silva analysed and reported as containing asbestos cement sheet debris and/or asbestos fibre contamination.

1. At each of these 10 location the grass and soil attached to the roots of the grass was pulled back to expose the underlying soil. At each of these location the underlying soil was ground to consist of dark brown coloured sandy clay soil that contained organic matter. At each location no building debris was found to be present and no visible asbestos containing material or asbestos contaminated material was sighted. At each location a soil sample containing soil from the root zone of the grass and soil from the instu site soil was collected for laboratory analysis to determine the presence/absence of asbestos fibres in this soil. Each soil sample contained a minimum of 100 grams of soil.

1. Following collection, each soil sample was placed into a clean resealable plastic bag which was marked with the sample location, sample number and date. These soil samples were then forward to ESP Laboratories NATA accredited laboratory in Footscray Victoria for analysis to determine if these samples contained asbestos fibres. The samples were analysed using ESP in house method No 2 and methodology in accordance with AS4964-2004.

1. The NATA accreditation held by ESP for this analysis is based on their in house method and the required of AS4964-2004. Mr "Clifton noted that

AS4964-2004 required the whole amount of the soil samples to be inspected and then a sub sample of approximately 40 grams to be taken using an approved sub sampling technique.

1. Each of the 10 soil samples collected from the locations as detailed on Mr De Silva's sample location plan were found to be free of asbestos fibres, reported as "No Asbestos Detected".

1. The sample locations and analysis results are shown below.

Table 2 - Soil Samples From Front and Rear Yard Areas
Sample No	Laboratory Reference No	Location	Results of Analysis
1	E28688	Location 9	No asbestos detected
2	E28689	Location 26	No asbestos detected
3	E28690	Location 29	No asbestos detected
4	E28691	Location 35	No asbestos detected
5	E28692	Location 36	No asbestos detected
6	E28693	Location 42	No asbestos detected
7	E28694	Location 47	No asbestos detected
8	E28695	Location 48	No asbestos detected
9	E28696	Location 50	No asbestos detected
10	E28697	Location 55	No asbestos detected

1. Mr Clifton sighted no visible asbestos containing material such as asbestos cement sheet debris within the sub floor ground surfaces as view from the access door. He noted that the clearance between the underside of the floor framing and the ground surface was approximately 0.5 metres near the access door and that this clearance appeared to decrease towards the eastern and southern sides of the sub floor area.

1. Mr Clifton performed a visual inspection of the sub floor areas undertaken from the access door located in the northwestern area of the house. From this location approximately 50-60% of the ground surface within the sub floor area could be sighted. Importantly, the analysis of the 10 soil samples taken show "No asbestos detected".

1. Counsel for Mr El-Saiedy submitted that the testing of these 10 samples was not in accordance with the 2013 Amendment of Assessment of Site Contamination NE PM 1999 together with Schedule B1, Guideline on Investigation Levels for Soil and Groundwater (the current guideline) and in particular the sample sizes were too small. Housing submitted that the latter guidelines do not apply as a clearance certificate issued the property asbestos free in February 2013.

1. As previously stated, the experts agree that these guidelines commenced on 25 May 2013. Prior to that date the Australia Standard AS4964-2004 "Method for the qualitative identification of asbestos in bulk samples" was applicable (the earlier guideline). Appendix D of the earlier guideline set out the test in relation to observable fibres. Soil samples examinations and subsequent classifications of fibres from the sample should have been carried out in accordance with paragraph 8.2.3 of AS4964-2004. I accept that the testing carried out on the samples referred to in Mr Clifton's report of 3 September 2013 were in accordance with the earlier guidelines.

1. In relation to the current guidelines, Chapter 4 is entitled "Asbestos material in soil". Paragraph 4.2 is entitled "Historical use of asbestos in Australia". 4.2.3 reads:

Many older homes in all Australian communities still contain asbestos cement products, commonly in eaves or cladding of internal and external walls and roofs. When in good condition, bonded asbestos products do not release asbestos fibres into the air and are considered safe for people who are in contact with the, including when carrying and handling these materials (enHealth 2012). If asbestos materials can be maintained in good condition, enHealth (2005, 2012) recommenced that these material are best left alone and periodically checked to monitor their condition.

(My emphasis added)

1. Paragraph 4.8 is entitled "Health Screening levels for asbestos in soil". Table 7 is as follows:

Health Screening Level (w/w)
Form of Asbestos	Residential A1	Residential B2	Recreational C3	Commercial/ Industrial D4
Bonded ACM	0.01%	0.04%	0.02%	0.05%
FA and AF 5 (Friable asbestos)	0.05%
All forms of asbestos	No visible asbestos for surface soil

1. Residential A is applicable. It is defined as, "Residential A with garden/accessible soil also includes children's day care centres, preschools and primary schools."

1. Under the heading "Laboratory analysis" the guideline continues:

"As yet there is no validated method, readily available in Australia, of reliably estimating the concentration of free asbestos fibres in soil. Soil contamination by free asbestos fibres should therefore by simply determined according to the present or absence of fibres, in accordance with AS4964-2004: Method of Qualitative identification of asbestos in bulk samples (Standards Australia 2004) by a laboratory accredited by NATA (or its mutual recognition agreement partners) for this method.

AS4964-2004 set out a tiered approach to detecting the present of asbestos (amosite, crocidolite and chrysotile forms) in soil samples using polarised light miscroscopy and dispersion staining techniques. If evidence of asbestos fibres is not found in the greater than 2 mm sieved fraction, a trace analysis is required of the residue (sub-2 mm fraction). Depending on the nature and size of the soil sample, the sub-2 mm residue material may need to be sub-sampled for trace analysis.

The nominal detection limit of the AS4964 method is around 0.01%. The examination of large sample sizes (at least 500 ml is recommended may improve the likelihood of identifying asbestos material in the greater than 2 mm fraction."

1. My main concern throughout these proceedings has always been the safety of Mr and Mrs El-Saeidy's children in the house and the yard. At best, a large sample size may improve the likelihood of identifying asbestos material greater than 2 mm fraction. With the exception of one sample, all asbestos found in samples taken by Mr De Silva were in bonded form. Under both the old and new guidelines 0.01% is permitted. Bonded asbestos if present is considered safe if left alone. No asbestos was detected in the 10 sample soils taken by Mr Clifton from the areas where Mr De Silva indicated the presence of asbestos. I am satisfied that the soil in the yard is safe and does not pose a health risk to Mr El-Saeidy and his family.

1. In so far as Mr El-Saeidy seeks further compensation for discontent and loss of enjoyment, I am at a loss to understand how this can be so and I dismiss this claim.

1. While Mr El-Saeidy occupies the temporary premises, his premises have remained vacant. The premises have remained vacant for a period of almost six months. At the hearing, Mr El-Saeidy indicated that he did not want to continue residing in the temporary premises. He wanted to move back to the premises. That means Mr El-Saeidy is taking up two properties and Housing is incurring a financial loss each day in that it is not receiving rent for one of those two properties.

1. While Housing seeks an order that Mr El-Saeidy and his family return to the premises within 14 days and Mr El-Saeidy seeks 60 days, it is my view that a reasonable period is 28 days from the date of this judgment. This means that Mr El-Saeidy and his family can move their possessions in an orderly manner.

1. It must be remembered that the waiting list times for social housing in Greater Western Sydney, the allocation area which includes the premises, is currently in excess of 10 years for dwellings consisting of 2, 3 and 4 bedrooms. As a 30 June 2012, there were 3,834 applicants and their families awaiting allocations of social housing in Fairfield. Also it should be emphasised that to date the costs of the works undertaken on the premises is $110,722.58 plus $7,500 for the independent hygienist's report (Aff, Leighton James Hawkes, 13/08/2013 [16], [18], [20] and [21]).

1. In my view Mr El-Saeidy's sense of entitlement has caused both Housing and this court's limited resources to be used unmeritoriously. His numerous notices of motions have taken a disproportionate amount of court time. The funds that have been expended on Mr El-Saeidy and his family are also disproportionate to the needs of other Housing tenants. This court has finally determined all the issues that were in dispute in these proceedings.

The Court orders that:

(1) The plaintiff's notices of motion filed 31 July 2013 and 17 October 2013 are dismissed.

The Court makes declarations that:

(2) The defendant has complied with the orders of the Court made on 9 August 2011.

(3) The defendant has complied with agreement referred to at paragraph 3 of the Judgment of 9 August 2011 at (b), (c) and (e).

The Court further orders that:

(4) The plaintiff and his family are to move back into XX XXXXX X XXXX, Villawood within 28 days; and

(5) In the event the plaintiff does not comply with (4) above, the defendant is relieved from compliance with Order 3 made on 12 December 2011 by consent, and Order 4 made on 28 August 2012 by consent.

(6) The plaintiff is to pay the defendants costs as agreed or assessed.

**********

Amendments

30 October 2013 - Added further catchwords

Amended paragraphs: Coversheet

Decision last updated: 30 October 2013