Lane Cove Council v Chami (No 4)

[2014] NSWLEC 89

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lane Cove Council v Chami (No 4) [2014] NSWLEC 89
Hearing dates:	30 June 2014
Decision date:	30 June 2014
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	Orders for substituted service as per [10]
Catchwords:	PRACTICE AND PROCEDURE - ex parte application for orders for substituted service.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Part 6 Division 1A
Cases Cited:	Lane Cove Council v Ross (No 14) [2013] NSWLEC 87 Lane Cove Council v Chami [2014] NSWLEC 3 Lane Cove Council v Chami (No 2) [2014] NSWLEC 11 Lane Cove Council v Chami (No 3) [2014] NSWLEC 18 Ross v Lane Cove Council [2014] NSWCA 50
Category:	Interlocutory applications
Parties:	Lane Cove Council (Applicant) Sarab Chami (Respondent)
Representation:	COUNSEL: J McKelvey (Applicant) N/A (Respondent) SOLICITORS: Pikes & Verekers (Applicant) N/A (Respondent)
File Number(s):	40044/14

EX TEMPORE Judgment

1. The applicant, Lane Cove Council, moves ex parte for orders for substituted service on the respondent, Ms Sarab Chami, of the Council's notice of motion filed today and the supporting affidavit relating to a house at 8 Bayview Street, Northwood (Premises), of which she is the registered proprietor.

1. These and earlier proceedings against Mr Raymond Ross concern unauthorised works at the Premises. In Lane Cove Council v Ross(No 14) [2013] NSWLEC 87, Pepper J made orders against Mr Ross to demolish unauthorised alterations and additions to, and reinstate, the Premises, with further detailed orders made on 14 June 2013. In Ross v Lane Cove Council [2014] NSWCA 50 the Court of Appeal allowed an appeal against Pepper J's orders and remitted the matter to this Court because her Honour's injunctions had been granted without requiring joinder of Ms Chami who had recently succeeded Mr Ross as the registered proprietor of the Premises. Meanwhile, in January 2014, these proceedings against Ms Chami were commenced seeking similar relief. There followed in short order three decisions of this Court in the proceedings against Ms Chami before the Court of Appeal delivered its judgment in Ross. First, in Lane Cove Council v Chami [2014] NSWLEC 3 Craig J ordered substituted service on the respondent of a notice of motion for an interlocutory injunction. Secondly, in Lane Cove Council v Chami (No 2) [2014] NSWLEC 11 Sheahan J granted interlocutory injunctions restraining Ms Chami from causing or permitting the carrying out of any works at the Premises, and also from preventing implementation of Pepper J's orders (subject to specified exceptions). Thirdly, in Lane Cove Council v Chami (No 3) [2014] NSWLEC 18 Pain J granted an interlocutory injunction restraining Ms Chami from residing at the Premises until an occupation certificate was issued pursuant to a specified development consent.

1. The respondent, Ms Chami, has a building certificate appeal in relation to the Premises (proceedings 10398/14), which is pending in this Court.

1. Most recently, on 5 June 2014 Mr Adrian Moore, a Council senior building surveyor, attempted to inspect the Premises. It is this that has led to the Council's notice of motion filed today. Mr Moore was accompanied by Kerry Nash, a town planner, and police officers. According to Mr Moore's evidence, he spoke to the respondent and Mr Raymond Ross at the Premises and informed them that Kerry Nash and he were there on behalf of the Council to inspect the Premises with regard to illegal works continuing on the site and the ongoing Court proceedings. Mr Moore says he handed the respondent a letter of authority issued by the General Manager of the Council authorising entry without notice. He says that the respondent became angry and abusive, said that he should speak to her lawyer, and refused them entry to the house.

1. Mr Moore says he told the respondent that access to enter the premises for the purposes of carrying out an inspection had been granted by the General Manager and advised the respondent to read the letter. According to his evidence, the respondent continued to obstruct their entry and argue with them. Further conversation ensued in which he said that there was an outstanding Court demolition order which had still not been complied with and that the respondent continued to carry out further illegal works on the site without development approval. He says the respondent refused to give access and slammed the front door shut.

1. Upon walking around the back of the building, Mr Moore says he observed what he describes as unauthorised works, which he particularises. He attempted to open an internal glass sliding door at that part of the building said to have been unlawfully constructed and apparently intended to be used as a second double garage. He testifies that Mr Ross told him not to go in otherwise he (Mr Ross) would physically assault him. A police officer intervened to say that if Mr Ross touched Mr Moore, then the police officer would arrest Mr Ross. Mr Ross told Mr Moore that he could not go into the building without a court order for access. According to Mr Moore, a police officer subsequently informed Mr Moore that he would need to obtain a court order granting access inside the building if they were going to proceed with the inspection.

1. It is in these circumstances that the Council seeks orders for substituted service on the respondent of its notice of motion filed today and the affidavit of Mr Moore.

1. Two substantive interlocutory orders are sought in the notice of motion. First, an order that the respondent, her servants and agents be restrained from preventing and/or resisting persons duly authorised by the applicant from exercising their power of entry into the Premises pursuant to Part 6 Division 1A of the Environmental Planning and Assessment Act 1979. Secondly, an order that the respondent provide access to persons duly authorised by the applicant to enter the Premises for the purposes of inspecting them and taking such measurements and photographs as they shall require.

1. In the circumstances to which I have referred, I consider it appropriate to make an order for substituted service as sought by the Council.

1. The orders of the Court are as follows:

(1) The Court grants leave to the applicant to serve a copy of the notice of motion filed on 30 June 2014, the affidavit of Adrian Moore sworn on 27 June 2014 and these orders on the respondent by:

(a)   placing a sealed copy of the abovementioned notice of motion and affidavit in a clear plastic envelope and affixing same in a prominent position to the front of the dwelling at the premises 8 Bayview Street, Northwood;

(b)   posting copies of the abovementioned notice of motion and affidavit by express post to the respondent at 8 Bayview Street Northwood; and

(c)   emailing copies of the abovementioned notice of motion and affidavit to the respondent at [email protected] by noon on Tuesday, 1 July 2014.

(2) The remainder of the motion is listed before the Registrar on Friday, 4 July 2014.

Decision last updated: 01 July 2014