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Michales v Dimoski

Michales v Dimoski

Case [2007] NSWLEC 443 4 September 2007

Adverse Possession

Fiduciary Duty

Judicial Review

Natural Justice & Procedural Fairness

Environmental Law

Administrative Law

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Land and Environment Court

of New South Wales

CITATION: Michales v Dimoski and Ors [2007] NSWLEC 443

PARTIES:
APPLICANT
Paul Michales
FIRST RESPONDENT
Sash Dimoski
SECOND RESPONDENT
Hurstville City Council
THIRD RESPONDENT
Bernard Cohen
FOURTH RESPONDENT
Shifa Li

FILE NUMBER(S): 40253 of 2006

CORAM: Pain J

KEY ISSUES:
Practice and Procedure :- application to re-open case after dismissal or discontinuance - operation of Supreme Court Rules Pt 15 r 9.
Practice and Procedure:- whether fresh proceedings can be commenced.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 96, s 101
Land and Environment Court Act 1979 s 69
Land and Environment Court Rules 1996 Pt 6 r 1, Pt 11 r 6, Pt 15 r 9
Supreme Court Rules 1970 Pt 13 r 5

CASES CITED: Bailey v Marinoff (1971) 125 CLR 529;
Bayne v Blake (No 3) (1909) 9 CLR 366;
Charles Fortet Investments Ltd v Amanda [1964] 1 Ch 240;
Derry v Peek (1889) 14 App Cas 337;
DJL v Central Authority (2000) 201 CLR 226;
Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143;
Jacobsen & Anor v Ballina Shire Council [2006] NSWLEC 114;
Jelson (Estates) Ltd v Harvey [1984] 1 All ER 12;
Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207;
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 528;
Max Sgammotta Architects v South Sydney City Council [1996] NSWLEC 144;
Maitland City Council v Anambah Homes Pty Ltd (2005) 147 LGERA 234;
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589;
Running Pigmy Productions Pty Ltd v AMP General Insurance Co Ltd and Ors [2001] NSWSC 431;
Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438;
Woollahra Municipal Council v Ferella (2005) 141 LGERA 166

DATES OF HEARING: 24 May 2007
25 May 2007 (submissions)
5 June 2007 (submissions)
29 June 2007
5 July 2007 (submissions)

DATE OF JUDGMENT:
4 September 2007

LEGAL REPRESENTATIVES: APPLICANT
Mr B Stavropoulos (solicitor)
SOLICITOR
Stavropoulos Solicitors

FIRST and THIRD RESPONDENTS
Ms S Kluss
SOLICITOR
Hancock Alldis & Roskov
SECOND RESPONDENT
Mr M Fraser
SOLICITOR
Home Wilkinson Lowry
FOURTH RESPONDENT
No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

4 September 2007

40253 of 2006 Paul Michales v Dimoski and Ors
JUDGMENT

1 Her Honour: The Applicant, who lives at 8 Ruby Street, Hurstville, has filed a Notice of Motion dated 11 May 2007 seeking various declarations and orders in relation to a development at 10 Ruby Street, Hurstville pursuant to development consent no 200400066 granted by the Second Respondent (the Council) to the First Respondent.

2 Both the First Respondent and the Council have filed Notices of Motion seeking orders for dismissal of the Applicant’s Notice of Motion (the 2007 NOM) because they submit it is an attempt, inter alia, to overturn a perfected judgment. Alternatively, if the Notice of Motion is treated as the commencement 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.

Continue reading Michales v Dimoski

Details

AGLC: Michales v Dimoski [2007] NSWLEC 443
Case: [2007] NSWLEC 443
Decision Date: 4 September 2007

CaseChat Overview and Summary

Michales v Dimoski is a case concerning the validity of development consent granted to the First Respondent, Sash Dimoski, by Hurstville City Council. Paul Michales, the Applicant, sought various declarations and orders in relation to the development at 10 Ruby Street, Hurstville, pursuant to development consent granted by the Council. Both the First Respondent and the Council filed Notices of Motion seeking orders for dismissal of the Applicant’s Notice of Motion, arguing that it is an attempt to overturn a perfected judgment or alternatively, if treated as the commencement of fresh proceedings, these should be summarily dismissed on various grounds.

The court held that certain orders sought by the Applicant were inappropriate and could not be made, such as declaring the architectural plans invalid or the report to the Development Assessment Committee invalid. The court found that reopening the proceedings was not possible due to the perfected judgment and the principle of finality of litigation. The court also concluded that the principle of issue estoppel prevented the Applicant from raising matters again which were the subject of finalised proceedings. However, the court did not rule out the possibility of further proceedings based on the allegation of fraud, as proving fraud requires more than an inference arising because a document was not provided by the Council in a timely manner. The court also noted that whether an allegation of fraud overcomes the time bar under s 101 of the Environmental Planning and Assessment Act 1979 requires further argument before determination.

In conclusion, the court dismissed the Applicant’s Notice of Motion and found that the proceedings could not be reopened. However, the court did not preclude the possibility of fresh proceedings being instituted, provided that appropriate declarations and orders are sought and the onus of proving the allegation of fraud is discharged.

Orders