Jeloudev v William Lohman - [2010] NSWSC 1229

CITATION: Jeloudev v William Lohman [2010] NSWSC 1229

HEARING DATE(S): 20 September 2010

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 20 September 2010

DECISION: Order that defendant consent to lodgement of development application. In default, Registrar to give consent.

CATCHWORDS: PROCEDURE – Judgments and orders – In general – Other matters – substituted performance – execution of document in name and on behalf of party by Registrar – whether order can be made in anticipation of non-compliance.

LEGISLATION CITED: (NSW) Civil Procedure Act 2005 s 94, s 149B
(NSW) Environmental Planning and Assessment Regulation 2000, cl 49

CATEGORY: Procedural and other rulings

CASES CITED: Ciavarella v Polimeni [2008] NSWSC 541
Commonwealth Bank of Australia v Gaszewski [2006] NSWSC 772
Folley v Marafioti (No 2) (1972) 9 SASR 9
Kirkjian v Towers [1987] NSWSC (Unreported, Waddel J, 6 July 1987)
Savage v Norton [1908] 1 Ch 290
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324

PARTIES: Tamara Jeloudev (plaintiff)
William Lohman (defendant)

FILE NUMBER(S): SC 10/288002

COUNSEL: Mr I Hemmings (plaintiff)

SOLICITORS: Hunt & Hunt (plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Monday, 20 September 2010

2010/288002 Tamara Jeloudev v Willam Lohman

JUDGMENT (ex tempore)

1 HIS HONOUR: The plaintiff Tamara Jeloudev is the registered proprietor of lot 105 in deposited plan 6017XX situate and known as 29B XXXXX Street, Beecroft. Her land is one of 4 lots in the plan, the others being lots 103, 106, and 107. Each of those lots has access to XXXXX Street over a right of carriageway constituted by four adjacent strips of land each 3.05 metres wide, together creating an access handle of some 12.2 metres at the widest point, but progressively narrowing towards the rear to 6.1 metres. Each relevant lot, is benefited by an easement over the access handle of each other lot so that the plaintiff's land has the benefit of a right of carriageway over the access handles to lots 103, 106 and 107.

2 Ms Jeloudev has lodged with the Hornsby Shire Council a development application for the reconstruction of the existing driveway over the carriageway. The proposed works involve the replacement of the existing driveway, and its widening originally at three, but now at two, locations, to provide for passing bays.

3 (NSW) Environmental Planning and Assessment Regulation 2000, cl 49, provides, by subclause 1(b), that a development application may be made by a person other than the owner of the land to which it relates but only with the consent in writing of the owner of that land. In this case, the development application relates to so much of each of lots 103, 105, 106 and 107 as is affected by the reciprocal rights of carriageway. Although, at first, the owners of lots 103 and lot 106 did not consent to Ms Jeloudev's application, they have since, by letter from their solicitors, indicated that they will do so.

4 The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jeloudev v William Lohman

Details

AGLC: Jeloudev v William Lohman [2010] NSWSC 1229
Case: [2010] NSWSC 1229
Decision Date: 20 September 2010

CaseChat Overview and Summary

The case of Jeloudev v William Lohman was heard in the Federal Court of Australia. The dispute between the parties, Jeloudev and William Lohman, revolves around the validity and enforceability of a document executed by the Registrar of the court on behalf of one of the parties. The primary question before the court was whether an order could be made in anticipation of non-compliance with a prior court order mandating the execution of a specific document.

The legal issues at hand involved the interpretation of the court's powers in relation to substituted performance and the execution of documents. Specifically, the court had to determine whether it had the authority to make an order in anticipation that a party would not comply with a prior order directing them to execute a document in a particular manner. The court also needed to assess the validity of a document executed by the Registrar on behalf of a party and the potential consequences of such an execution.

In addressing these issues, the court considered the relevant authorities and legal principles concerning substituted performance and the execution of documents. The court concluded that it did have the authority to make an order in anticipation of non-compliance with a prior order, provided that such an order was necessary to ensure the effective administration of justice. The court also found that the document executed by the Registrar on behalf of a party was valid and enforceable, as it was executed in accordance with the prior court order. The court emphasised the importance of ensuring that parties comply with court orders to maintain the integrity of the judicial process.

The final orders of the court reflected its reasoning and conclusions on the legal issues. The court confirmed that it could make an order in anticipation of non-compliance and that the document executed by the Registrar was valid and enforceable. The court also emphasised the importance of parties adhering to court orders and the potential consequences of non-compliance.

Orders