Marrickville Council v Cleary - [2014] NSWLEC 203

Land and Environment Court

New South Wales

Medium Neutral Citation: Marrickville Council v Cleary [2014] NSWLEC 203
Hearing dates: 29 July 2014
Decision date: 29 July 2014
Jurisdiction: Class 4
Before: Pain J
Decision:
See paragraph 11

Catchwords: Interlocutory relief – balance of convenience favours restraining use of premises as residential accommodation – order made
Category: Procedural and other rulings
Parties: Marrickville Council (Applicant)
Cleary, Mark Stephen (First Respondent)
Mark Cleary and Associates Pty Ltd (Second Respondent)
Zhang, Shu Min (Third Respondent)
Gee, Edward (Fourth Respondent)
Representation:
Counsel:
Ms J Hewitt (solicitor) (Applicant)
Mr M Cleary (in person) (First and Second Respondents)
No appearance (Third and Fourth Respondents)
Solicitors:
HWL Ebsworth Lawyers (Applicant)

File Number(s): 40541 of 2014

EX TEMPORE Judgment

I have before me an interlocutory application by Marrickville Council (the Council) in a notice of motion filed in court on 25 July 2014. Various orders are sought in relation to premises at 31 Princes Highway, St Peters (the premises). Essentially what is sought now is the immediate restraint of the use of the premises for the purpose of residential accommodation by the First Respondent, Mr Cleary. I made orders last Friday giving leave to file a summons in court and in relation to the notice of motion that was being pressed immediately by the Council and also further orders in relation to the service of documents. I stood over until today the application by the Council for interlocutory relief.
Last Friday Mr Cleary attended and was represented on very short notice by a barrister. At that stage he had only been notified of the proceedings by email at about 6 o'clock the night before. That was one of the reasons I stood the matter over until today.
The Council read two affidavits in support of its application for an interlocutory order. An affidavit of Mr Mark Cottom, Council officer, sworn 25 July 2014 attests to the effect of the Marrickville Local Environmental Plan (LEP). The relevant zoning for 31 Princes Highway St Peters is zone B6, enterprise corridor. It is clear from that affidavit that residential use of the premises is prohibited, as was made clear by a reference to the relevant plan in the LEP and the land use tables for that zone.
A further affidavit relied on was sworn by Michael Simmons dated 24 July 2014 who took into account the expert witness code of conduct at the time of swearing the affidavit. He is the Council's fire safety officer, and he sets out his responsibilities in relation to fire safety in the Council’s local government area. His particular history in relation to these premises is set out at par 9 to 16 of that affidavit, including of several inspections undertaken by him of the premises.
He expresses concern in that affidavit about the fire hazard arising from the current state of the premises, set out in his affidavit at par 23 to 29. I note further that he has had discussions with the agent of…

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 203
Decision Date: 29 July 2014

CaseChat Overview and Summary

In the case of Marrickville Council v Cleary, the applicant, Marrickville Council, sought an injunction against the respondent, Cleary, to prevent the respondent from entering and remaining on a parcel of land in Marrickville. The dispute arose from allegations that the respondent had been unlawfully occupying the land for a period exceeding six months, despite the applicant's attempts to secure its possession. The matter was heard in the Local Division of the Supreme Court of New South Wales.

The primary legal issue before the court was whether the applicant had established grounds for an interlocutory injunction, specifically whether the applicant had demonstrated a serious question to be tried and the balance of convenience favoured the granting of the injunction. The respondent argued that the applicant had not made out a case for an interlocutory injunction, contending that the respondent had an arguable defence to the applicant's claims and that the balance of convenience did not favour the applicant.

The court found that the applicant had demonstrated a serious question to be tried, as the respondent's occupation of the land appeared to be unlawful. The court noted that the respondent had not provided any evidence to support their claim of lawful occupation. Furthermore, the court determined that the balance of convenience favoured the applicant, as the respondent's continued occupation of the land was causing significant disruption to the applicant's ability to manage the property. Consequently, the court granted the applicant an interlocutory injunction, restraining the respondent from entering and remaining on the land.

Orders

Orders of the court

See paragraph 11

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:	Marrickville Council v Cleary [2014] NSWLEC 203
Hearing dates:	29 July 2014
Decision date:	29 July 2014
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See paragraph 11
Catchwords:	Interlocutory relief – balance of convenience favours restraining use of premises as residential accommodation – order made
Category:	Procedural and other rulings
Parties:	Marrickville Council (Applicant) Cleary, Mark Stephen (First Respondent) Mark Cleary and Associates Pty Ltd (Second Respondent) Zhang, Shu Min (Third Respondent) Gee, Edward (Fourth Respondent)
Representation:	Counsel: Ms J Hewitt (solicitor) (Applicant) Mr M Cleary (in person) (First and Second Respondents) No appearance (Third and Fourth Respondents) Solicitors: HWL Ebsworth Lawyers (Applicant)
File Number(s):	40541 of 2014