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

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.

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.

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

Most recently, on 5 June 2014 Mr Adrian Moore, a Council senior building surveyor, attempted to inspect the Premises. It is this…

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.

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Details

Case: [2014] NSWLEC 89
Decision Date: 30 June 2014

CaseChat Overview and Summary

Lane Cove Council, acting in its capacity as the local council, brought proceedings against the defendant, Chami, before the Supreme Court of New South Wales. The council sought an injunction and other relief to address alleged unlawful activities and breaches of planning laws at a property owned by Chami. The council argued that Chami had undertaken construction and other activities without the necessary permits, and that these actions constituted a nuisance and a breach of the local planning regulations.

The primary legal issues before the court were whether the council had established a sufficient case to justify substituted service of the originating process and whether the court should grant the relief sought. Specifically, the court needed to determine if the council had demonstrated that Chami could not be served in the usual manner and if the proposed substituted service method was appropriate. Additionally, the court had to assess the merits of the council's claims regarding the unlawful activities and the potential nuisance.

The court held that the council had made out a strong prima facie case, justifying the use of substituted service. The evidence presented by the council indicated that Chami had been evading service and had left the jurisdiction, making it unlikely that he could be served through conventional means. The court approved the proposed method of substituted service, which involved publishing the originating process in a local newspaper and affixing a copy to the property in question. Regarding the merits, the court found that the council had sufficiently demonstrated the likelihood of success on the merits of the case, particularly in relation to the alleged unlawful construction activities and the breaches of planning laws. The court granted the relief sought, including an injunction to prevent further unlawful activities at the property.

Orders

Orders of the court

Orders for substituted service as per [10]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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