Karmel and Co Pty Ltd v Leichhardt Municipal Council

[2014] NSWLEC 199

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Karmel & Co Pty Ltd v Leichhardt Municipal Council [2014] NSWLEC 199

Decision date:

30 December 2014

Jurisdiction:

Class 1

Before:

Biscoe J

Decision:

(1) Extend the time for compliance with the consent orders of 16 December 2014 to 7 February 2015.

(2) Provided that the subject premises are vacated, further extend the time for compliance with the consent orders of 16 February 2014 to 31 March 2015.

Catchwords:

JUDGMENTS AND ORDERS - motion for extension of time for compliance with consent orders for fire upgrade works to backpackers' accommodation premises.

Category:

Procedural and other rulings

Parties:

Karmel & Co Pty Ltd (Applicant)
Leichhardt Municipal Council (Respondent)

Representation:

COUNSEL:
A Urbanski (director of Applicant)
M Bonanno (Respondent)

SOLICITORS:
N/A
Ritchie & Castellan (Respondent)

File Number(s):

10834/14

Judgment

1. This is a motion by the applicant, Karmel & Co Pty Ltd, for an extension of time until 31 March 2015 to comply with consent orders of the Court made on 16 December 2014. The consent orders require six categories of fire upgrade works at premises at 673-677 Darling Street, Rozelle, which are used for backpackers’ accommodation. Some of the orders require compliance within 30 days, others within seven days. I am told that some of the seven day orders have been complied with except for satisfactory paperwork.

2. The consent orders were made in an appeal in Class 1 of the Court’s jurisdiction against a statutory emergency order made by the respondent, Leichhardt Municipal Council, on 9 September 2014 requiring the applicant to cease using the attic area of the premises for backpackers’ accommodation or for storage of goods or for any other purpose. The settlement achieved by way of the consent orders also resolved outstanding disputation between the parties concerning three other statutory emergency orders issued by the Council relating to the premises.

3. In support of the motion for an extension of time, a director of the applicant, Mr Andrew Urbanski, swore a short affidavit on 22 December 2014 in which he states:

On 16 December 2014 I agreed on behalf of Karmel & Co Pty Ltd to consent orders based on advice from my expert, Michael Robson of National Fire & Safety. I mentioned to the Court at the time that I was agreeing under good faith as I had not worked with this person previously. Since that time I have been unable to contact Mr Robson. On checking, I found his business name is not registered and that he is not at the address on his letterhead. We have paid $5,500 (refer to annexure A). I will be overseas from 4 Jan – 7 Feb. Others that I contacted are closing up today and opening mid-Jan 2015. One firm advised they could not start until mid-Feb 2015.

4. The annexure to the affidavit is a copy of a letter of 11 December 2014 from Mr Michael Robson of National Fire & Safety at Kirrawee, which indicates his agreement to act on behalf of the applicant to have the premises fully comply with current fire safety standards and proposed fire order and fire safety upgrade strategy tabled in an environment summary dated 2 December 2014. The agreed price referred to in the letter is $5,500 to start the process, $5,500 mid project and $5,500 upon completion of all works and approval by Council and sign off.

5. In a supplementary statement Mr Urbanski said he had retained Mr Robson to coordinate work to be done under the consent orders, gave details of his unsuccessful attempts to contact Mr Robson, and said that Mr Robson had disappeared and that Mr Urbanski on 23 December had commenced legal proceedings to recover the $5,500 paid to him.

6. There have been issues between the parties concerning emergency fire orders relating to the premises issued by the Council as far back as 2005.

7. Evidence adduced by the Council recounts the process of negotiations between the parties culminating in the consent orders.

8. Mr Urbanski was in contact with a solicitor for the Council, Mr Ritchie, within a week of the making of the consent orders stating that he was unable to complete the works in the schedule to those orders due to a failure to locate a person to undertake the work.

9. On 24 December 2014 Mr Mark Bonanno, the Council’s Manager of Legal Services, attempted to call Mr Robson on the numbers given in the annexure to Mr Urbanski’s affidavit and left messages for Mr Robson on his business and mobile numbers. On 29 December he again attempted to call Mr Robson and on this occasion was successful. Following their conversation Mr Bonanno emailed to Mr Robson a copy of the notice of motion and Mr Urbanski’s affidavit, and received in response Mr Robson’s email of 29 December 2014. In the email Mr Robson paints a picture of a breakdown of the relationship between him and Mr Urbanski, which was not so much one of him abandoning Mr Urbanski but instead suggesting that there was a money issue, that he had commenced work but not been paid for his efforts, that he had been at pains to obtain tradespeople to undertake the required works, and that Mr Urbanski had interfered with the works. I understand from Mr Urbanski that he disputes much, if not all of this. It is not possible on a motion of this nature for me to resolve this dispute.

10. I take into account that, according to his email, Mr Robson, on whom Mr Urbanski says he placed reliance when consenting to the orders, made himself unavailable by going off on holidays from 22 December 2014 until 6 January 2015. Mr Robson has indicated that he is willing to resume work under his agreement from 6 January 2015. Mr Urbanski says he is mistrustful of Mr Robson. Nevertheless he is agreeable to Mr Robson resuming work on 6 January 2015. I think that there should be an extension of time to reflect the period that Mr Robson made himself unavailable. Mr Urbanski has indicated that the period of unavailability that he encountered with Mr Robson was from 16 December 2014. As I am not in a position to resolve that time dispute on this motion, I am inclined to grant an extension of time for compliance to 7 February 2015 to reflect the delay due to Mr Robson’s unavailability between (I assume) 16 December 2014 and 6 January 2015.

11. As for any further extension of time, I take into consideration the long history between the parties concerning fire safety upgrades and, more importantly, the serious fire risk to occupants of the premises if the work is not carried out as expeditiously as possible. Because of that risk, the Council has little concern about the time to carry out the work required by the consent orders provided that the premises are vacated pending any further period for completion of the work.

12. The orders of the Court are as follows:

1. Extend the time for compliance with the consent orders of 16 December 2014 to 7 February 2015.

2. Provided that the subject premises are vacated, further extend the time for compliance with the consent orders of 16 December 2014 to 31 March 2015.

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Amendments

06 February 2015 - By consent, slip rule amendment to order (2) in [12] - change "16 February" to 16 December".

Decision last updated: 06 February 2015