Lane Cove Council v Chami (No 2)

[2014] NSWLEC 11

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lane Cove Council v Chami (No 2) [2014] NSWLEC 11
Hearing dates:	4, 7 and 10 February 2014
Decision date:	10 February 2014
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	See pars [40] and [41] hereof
Catchwords:	INTERLOCUTORY RELIEF: Continuing work done in breach of a development consent and orders of the Court - whether respondent has sufficient involvement in the contravention - form of interlocutory injunction - balance of convenience
Cases Cited:	Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 183 LGERA 228 Burwood Council v Ralan Burwood Pty Ltd [2013] NSWLEC 173 CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (In Liq) (Receivers and Managers Appointed) (No 3) [2012] NSWLEC 6 Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472 Holroyd City Council v Murdoch (1994) 82 LGERA 197 Hume Coal Pty Ltd v Alexander [2012] NSWLEC 267 Lane Cove Council v Chami [2014] NSWLEC 3 Lane Cove Council v Ross No 14 [2013] NSWLEC 87 Lane Cove Council v Ross No 15 [2013] NSWLEC 206 North Sydney Council v Moline (No 2) [2008] NSWLEC 169 Wilkie v Blacktown City Council and Others [2002] NSWCA 284; (2002) 121 LGERA 444 Woollahra Municipal Council v Sahade [2012] NSWLEC 76
Category:	Interlocutory applications
Parties:	Lane Cove Council (Applicant) Sarab Chami (Respondent)
Representation:	N Eastman, barrister (Applicant), with J McKelvey, barrister on 10 February 2014 S Shneider, solicitor (Respondent) Pikes & Verekers Lawyers (Applicant) Houston Dearn O'Connor (Respondent)
File Number(s):	40044 of 2014

Judgment

Introduction

1. In these class 4 proceedings, filed on 31 January 2014, Council seeks urgent interlocutory relief.

1. That issue came before Craig J on the date of filing, and his Honour made orders in respect of service and return: Lane Cove Council v Chami [2014] NSWLEC 3.

1. His Honour listed the matter before me at 9.15am on Tuesday 4 February, and, on that morning, the Registrar received a long letter from the respondent (Exhibit L2), seeking an adjournment for the purpose of obtaining legal advice.

1. I granted the adjournment, and directed that a copy of the letter be provided to the applicant Council's lawyers. I stood the matter over to 2pm last Friday 7 February.

1. In the meantime, on 6 February, Steven Shneider of Houston Dearn O'Connor filed an appearance, together with an affidavit sworn by the respondent. When the matter came on for hearing at 2pm on 7 February, Mr Shneider appeared for the respondent, who attended Court at 2.15pm.

1. Mr Eastman appeared for Council, supported by his instructing solicitor Mr Griffiths, and Council's Senior Building Surveyor, Adrian Moore.

1. Affidavits from both Mr Moore and the respondent were read, and both deponents were cross-examined.

1. The respondent was cross-examined on several documents (tendered as Exhibit L1), and she ultimately gave an undertaking to the Court "not to undertake, cause or permit any work to be carried out on the land at 8 Bayview St Northwood until further order of this court."

1. The matter was then stood over to today for submissions.

The Ross Proceedings

1. The matter concerns works on land at 8 Bayview St, Northwood, which works have been at the heart of protracted proceedings between Council and one Raymond Ross.

1. Those proceedings resulted in comprehensive orders being made by Pepper J on 14 June 2013, following her fourteenth judgment in the matter: Lane Cove Council v Ross No 14 [2013] NSWLEC 87. Pepper J gave Ross 90 days to comply.

1. In May 2013, ownership of the subject land had passed to the present respondent, whose family has had a longstanding business and personal association with Mr Ross and his family.

1. The present respondent, who has used (for personal reasons) several names, had some involvement with Council, and with the Ross proceedings, before that main judgment of June 2013.

1. Council now alleges that she has continued to do or direct works on the land, contrary to both the relevant consent and Pepper J's orders, and has colluded with Ross to thwart, delay or evade this Court's orders and Council's efforts to enforce and safeguard the State's development control regime.

1. She suggested, in her letter to the Court on 4 February (Exhibit L2), that those orders of Pepper J had been "suspended by the LEC pending the hearing of the appeal", now on foot in the Court of Appeal.

1. That assertion does not give the complete picture.

1. Pepper J's orders remain on foot, but, on 29 November 2013, Biscoe J, in Lane Cove Council v Ross No 15 [2013] NSWLEC 206, dealt with a Notice of Motion ("NOM") brought by Ross, seeking a suspension of Pepper J's orders, and vacation of a December date set for the hearing of Council's motion against Ross for contempt, in respect of his alleged disobedience of them.

1. In paragraph [3], Biscoe J noted Ross's undertaking to the Court that neither he nor any "servants agents or employees" would conduct works on the land. In the light of that and one other undertaking (to diligently pursue the appeal he had filed out of time against Pepper J's orders), his Honour ordered, by consent, the suspension of the orders "on the terms of that undertaking", and vacated the contempt hearing.

1. Council had sought its costs of Ross's NOM of 22 November 2013, and Biscoe J noted (at [12]) that the evidence showed Ross's open defiance of Pepper J's orders, to that time. His Honour ordered Ross to pay the Council's costs on the NOM.

1. Presently, Ross's appeal is proceeding slowly before the Court of Appeal, and Council's contempt proceedings against him are awaiting the outcome.

The Present Proceedings

1. There is much else in the present respondent's letter to the Registrar (Exhibit L2), and in her affidavit and oral evidence, with which Council takes serious issue, and by which I am troubled, in term of her credit.

1. I am, as yet, far from satisfied that I should accept her evidence.

1. However, at this early stage of this matter, the primary concern of the Court is the urgent question of interlocutory relief.

1. Ross conceded the illegality of some relevant works he had done, and it is clear, from Moore's evidence, and indeed from that of the respondent herself, that works on the land continue not to comply with the Council's consent and/or the Court's orders. The details are readily available from reading Moore's affidavit of 30 January 2014, insofar as it updates his evidence, and that of Council's experts, as at May 2013, which evidence was summarized by Pepper J.

1. The respondent asserted that her works comply with the consent, but, as Mr Eastman submits (par 10), there is no realistic scope for works to be done pursuant to the consent until Pepper J's demolition orders have been carried out, and remediation works have commenced.

1. Council alleges that Ross and the present respondent are colluding to evade the Court's orders: indeed, she was in touch with him during the hearing last Friday.

1. I am satisfied, as the respondent herself contends, that she is in control of the property, of the work to be done on it, and of the people who can access it.

1. She is involved in a "contravention" of the law (see Wilkie v Blacktown City Council and Others [2002] NSWCA 284; (2002) 121 LGERA 444 ("Wilkie"), Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472, North Sydney Council v Moline (No 2) [2008] NSWLEC 169, and Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 183 LGERA 228).

1. She also satisfies the "take advantage" test (see CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (In Liq) (Receivers and Managers Appointed) (No 3) [2012] NSWLEC 6, Wilkie again, and Holroyd City Council v Murdoch (I994) 82 LGERA 197).

1. I examined and applied those cases in Burwood Council v Ralan Burwood Pty Ltd [2013] NSWLEC 173 (see [260] - [280]), to a certain effect, but, on the basis of them, I conclude in the present matter, that it is appropriate that relief be sought against this respondent, as the registered owner in actual and firm control of the premises and the works.

1. Also, on the principles which I summarized and applied in the Hume Coal Pty Ltd v Alexander [2012] NSWLEC 267, especially at [68] - [82], it is appropriate that interlocutory relief be granted against this respondent.

1. However, the Court must fashion such relief so as to operate fairly as against this respondent. She accepts the unlawfulness of at least some work, and admits residing in the premises without an occupation certificate, as her other dwelling is affected by asbestos, and she has small children.

1. However, the Council has established a strong prima facie case for the final relief it is seeking against this respondent. In this respect I am content to accept the outline Mr Eastman has provided (pars 12 - 18B), other than drawing any adverse imputation at this stage from her use of different names.

1. The balance of convenience is clearly, on this occasion, in favour of the local council, which has also proffered an undertaking as to damages.

1. The Court cannot allow the orders it has already made about this property to be subverted, and the interlocutory relief which Council has sought would prohibit their further breach.

The Form of Relief

1. In its pleaded form, however, I am satisfied that the suggested Order 5, which has clear merit, could work an unjust hardship on this respondent, and I, therefore, accept the suggestion that I add an "Order 5A", in the nature of the "liberty to apply on sufficient cause", which was granted by Preston J in Woollahra Municipal Council v Sahade [2012] NSWLEC 76.

1. To counter further asserted prejudice, I am also prepared to order and facilitate an expedited final hearing of Council's summons.

1. In all the circumstances of the case - including that circumstance, and the history of work, which she says is simply household maintenance, continuing on elements of past work which the Court has ordered be demolished - that range of orders seem entirely appropriate and fair.

1. I am also satisfied that an order for Council's costs on its NOM, as agreed or assessed, to be paid by this respondent should be made.

Orders

1. The orders of the Court will, therefore, be:

(a)   An order in the terms of Order 4 in the applicant Council's NOM of 31 January 2014.

(b)   An order in the terms of Order 5 in that NOM.

(c)   An order in the terms of additional Order 5A, as drafted and agreed at the conclusion of the hearing.

(d)   A costs order in the terms of Order 6 in the NOM of 31 January 2014.

(e)   An order that the hearing of the substantive proceedings are expedited.

(f)   An order that the exhibits be retained.

1. The parties are directed to prepare and submit orders in these terms to me in chambers within 24 hours, and to appear before the List Judge next Friday 14 February 2014, for fixing of an expedited hearing date, and the giving of appropriate directions.

1. I will publish these reasons tomorrow.

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Decision last updated: 14 February 2014