Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd

[2019] NSWLEC 123

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd [2019] NSWLEC 123
Hearing dates:	7, 8, 9, 12, 14, 15, 19 and 20 August 2019
Date of orders:	21 August 2019
Decision date:	28 August 2019
Jurisdiction:	Class 4
Before:	Moore J
Decision:	Noting the giving by the Applicant, by its counsel, of the usual undertaking as to damages, the orders of the Court are: (1)   The First and Second Respondents, by themselves, their servants and agents, are restrained, until further order, from carrying out any further works in reliance upon Development Consent DA 136/2012 (as modified) and Development Consent DA 2015.98.1 (as modified) and Construction Certificate No. 16/0475-02 issued on 8 March 2018 for bulk excavation, shoring and piling; and (2)   First and Second Respondents are jointly liable to pay, as agreed or assessed, the Applicant’s costs of the hearing concerning Prayer 10 of the Applicant’s Notice of Motion filed in Court on 7 August 2019 unless my Associate is notified by 4.30pm on Friday 13 September, by a party, that that party wishes to be heard to propose some different costs order.
Catchwords:	INTERLOCUTORY INJUNCTION - matters requiring consideration - concession by relevant Respondents that there were serious issues to be tried - status of plans for which construction is being undertaken, but which were not the plans for which the relevant construction certificate was issued - process by which new plans were “approved” by certifier without modification to the existing construction certificate or the issuing of a new construction certificate - requirement for a voluntary planning agreement prior to the issue of a construction certificate - no voluntary planning agreement entered into but a construction certificate issued - need for protection of the integrity of the planning system - no functional evidence of the extent of financial impact on the First and Second Respondents if an injunction was to be issued - appropriate to issue an injunction restraining further construction until further order MATTER REFERRED TO REGULATORY AUTHORITY - issues arising from the evidence concerning the appropriateness or otherwise of the action of the building certifier appointed for the proposed development - copy of this judgement and relevant exhibits referred to the President of the Building Professionals Board SECOND MATTER REFERRED TO REGULATORY AUTHORITY - possible stamp duties matters arising out of the evidence concerning the purchase price of the development site - oral and written evidence given that the purchase price of the development site was $23 million - transfer certificate shows that the declared purchase price was approximately $9.9 million - initial suggestion by witness that the balance was to be accounted for by the transfer of residential units in the development (when completed) to the vendor of the development site - attempts by the witness to withdraw this statement and offer alternative explanations for the discrepancy in the stated purchase prices - copy of this judgement and relevant exhibit referred to the Chief Commissioner for State Revenue
Legislation Cited:	Environmental Planning and Assessment Act 1979
Cases Cited:	Australian Broadcasting Corporation v O’Neill [2006] HCA 46 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235; [2005] NSWLEC 198 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89
Category:	Procedural and other rulings
Parties:	Omaya Investments Pty Ltd (Applicant) Dean Street Holdings Pty Ltd (First Respondent) TQM Design & Construct Pty Ltd (Second Respondent) John Patrick Elias (Third Respondent) Maurice Freixas (Fourth Respondent) Burwood Council (Fifth Respondent)
Representation:	Counsel: Mr T Robertson SC/Mr J Lazarus, barrister (Applicant) Mr A Pickles SC/Ms L Nurpuri, barrister (First to Third Respondents) Submitting Appearance (Fourth Respondent) Mr R White, barrister (Fifth Respondent)   Solicitors: Project Lawyers (Applicant) Salim Rutherford (First to Third Respondents) Jaku Legal (Fourth Respondent) Houston Dearn O’Connor (Fifth Respondent)
File Number(s):	228381 of 2019
Publication restriction:	No

TABLE OF CONTENTS

Summary of significant additional outcomes

Introduction

The interlocutory proceedings

Introduction

Joinder of the certifier and the Council

The nature of this decision

The evidence

Other evidence

Exhibits A, B and F

The terms of the interim injunction

Why the interim injunction was made

Introduction

The tests for whether to issue an interim injunction

Introduction

Are there serious questions to be tried?

Introduction

Is what has been partially constructed lawful?

The extent of the site’s excavation

The request for a voluntary planning agreement

Conclusion on serious issues to be tried

Delay

The balance of convenience

Introduction

Mr Taouk’s evidence

Conclusion on the potential damage to the First and Second Respondents

Issuing of the interim injunction

Other matters to be noted

Referral of Mr Freixas to the Building Professionals Board

Referral of the First Respondent to the Chief Commissioner for State Revenue

The principals at Dix Gardner Group Pty Ltd

JUDGMENT

Summary of significant additional outcomes

1. Given that these proceedings have resulted in an interim injunction restraining the First and Second Respondents from undertaking further work at their development site at Burwood until further order of the Court (for the reasons explained in the main body of this judgment), and the fact that the substantive hearing of these proceedings is to commence on 11 September next, it is also appropriate to set out, in point form, the two additional outcomes of these interlocutory proceedings that are in addition to the issuing of the restraining injunction.

• First, as later discussed in this judgment, I have had the Registrar write to the President of the Building Professionals Board (the Board) to draw a number of matters to the attention of that Board that it may be appropriate for that Board to investigate. A copy of the Registrar’s letter is Annexure A to this judgment.

• Second, I have had the Registrar also write to the Chief Commissioner of State Revenue concerning matters arising from the evidence of Mr Maroun Taouk concerning the acquisition by the First Respondent of the development site. A copy of the Registrar's letter is Annexure B to this judgment.

I have taken this step as a consequence of there being a significant and inadequately explained conflict between the affidavit and oral evidence given by Mr Taouk concerning the acquisition price and process for the development site and that which is disclosed by a formal transfer document tendered by Omaya Investments Pty Ltd (the Applicant). This latter document discloses that an acquisition price of some $9.9 million has been declared in the transfer document, whilst it was Mr Taouk's evidence that the land acquisition cost was $23 million. Whilst I make no determination about the accuracy of these matters, although I do undertake a general evaluation of the reliability (or, more correctly, unreliability) of Mr Taouk's evidence, this material discloses a potential difference in (unpaid) stamp duty liability, if the purchase price given Mr Taouk’s evidence is accurate, of over $700,000.

Although I make no finding concerning this, as it is not a matter of relevance in these proceedings, I considered that it was appropriate to draw the apparent discrepancy, and the evidence concerning it, to the relevant state revenue authorities.

2. For completeness, I should observe that I gave the legal representative of Mr Freixas, the certifier (and Fourth Respondent in the proceedings), notice that I intended to have the matters concerning him drawn to the attention of the Board and his representative was provided the opportunity to make submissions as to why that should not occur. No such submission was made.

3. Similarly, I gave notice to senior counsel appearing for the First and Second Respondents of my intention to refer the development site acquisition price matters to the Chief Commissioner of State Revenue and provided an opportunity for the making of submissions to me as to why I ought not have that reference made. No such submissions were made in this regard.

Introduction

4. The Applicant owns property in Burwood, a suburb in Sydney's inner west. On 23 July 2019, the Applicant commenced Class 4 civil enforcement proceedings, with the Summons commencing those proceedings nominating three respondents. Dean Street Holdings Pty Ltd (the First Respondent) is the owner of properties at 1-3 Marmaduke Street and 7 Dean Street, Burwood (the site). The site adjoins land owned by the Applicant.

5. The company undertaking construction of development on the site owned by the First Respondent is TQM Design & Construct Pty Ltd (the Second Respondent). The First and Second Respondents are, in a non‑technical sense, related entities, as they both fall within what can be regarded as the interests of the Taouk family. It is convenient to refer to the First and Second Respondents collectively.

6. Mr John Elias (the Third Respondent) is the owner of a property at 4 George Street. Mr Elias has permitted the construction of a crane footing pad on his property - a structure for which the Applicant contends development consent was required but was not obtained.

7. The First Respondent's property has the benefit of several development consents granted by Burwood Council (the Council). In short summary, the scope of the development on the First Respondent's land encompasses a 25‑storey, mixed use, residential development with basement car-parking.

The interlocutory proceedings

Introduction

8. On 7 August 2019, I commenced hearing various interlocutory applications made by the Applicant in these Class 4 proceedings commenced against the First and Second Respondents concerning work being undertaken by the Second Respondent, on behalf of the First Respondent, at the development site. The proceedings were also commenced against the Third Respondent.

Joinder of the certifier and the Council

9. As part of the range of matters sought by the Applicant's Notice of Motion, I joined Mr Maurice Freixas, the certifier for the development, as the Fourth Respondent. Mr Freixas is an employee of a firm, Dix Gardner Group Pty Ltd, which undertakes building certification amongst the range of services which it offers. Mr Jaku, Mr Freixas’ solicitor, subsequently appeared on his behalf, with that appearance later being converted to being a submitting one.

10. The Council was also joined as the Fifth Respondent. The Council appeared, initially by Mr Shneider, its solicitor, and subsequently by Mr Robert White of counsel.

The nature of this decision

11. This judgment deals with one element in a Notice of Motion filed by the Applicant on 7 August 2019 (Prayer (10)), by which the Applicant sought an interlocutory injunction restraining the First and Second Respondents from carrying out further construction work on the development site.

12. Although the Fourth Respondent was subpoenaed to give evidence, and was cross-examined by Mr T Robertson SC, counsel for the Applicant, and by Mr A Pickles SC, counsel for the First and Second Respondents, the Third to Fifth Respondents played no active participating role in my consideration of whether or not an interlocutory injunction should issue.

13. During the course of the hearing on 15 to 20 August 2019, I indicated to the parties that I expected I would be able to provide them with my conclusion as to whether an interim injunction should issue within a short period after the conclusion of the hearing.

14. However, given the matters of detail that would need to be addressed in providing these reasons for that conclusion, I would not be able to provide this detailed decision until some 10 days to a fortnight after making the necessary determination. The parties agreed that this two-step process was appropriate.

15. The hearing of the interlocutory injunction application concluded at approximately 4.40 pm on Tuesday 20 August 2019. During the course of the hearing on that day, at my request, Mr Robertson confirmed that the Applicant offered the usual undertaking as to damages (see r 25.8 of the Uniform Civil Procedure Rules 2005) if I was to impose the interim injunction.

The evidence

16. Affidavit evidence/expert report evidence was provided by:

• Ms Lucinda Morphett, a solicitor employed by the legal representative of the Applicant, by affidavits dated 23 July, 5 and 7 August 2019;

• Mr Maroun Taouk, a principal of the Second Respondent who was also authorised to give evidence on behalf of the First Respondent. Mr Taouk deposed two affidavits, they being dated 1 and 13 August 2019. Documentary material exhibited to Mr Taouk’s second affidavit became Exhibit 4. Although some material in Mr Taouk’s affidavits did not come into evidence, it is not necessary to deal with matters to which the Applicant had raised objections or matters where elements of the affidavit material were not read on the interlocutory application. Mr Taouk was required for cross‑examination;

• Mr Andrew Castle, a structural engineer, provided an Expert Report, a Supplementary Expert Report and an Expert Report in Reply. Mr Castle was the Applicant’s engineering expert in the proceedings; and

• Mr John Braybrooke, an engineering geologist at Douglas Partners, provided a written report on behalf of the First and Second Respondents.

17. Mr Castle and Mr Braybrooke gave concurrent oral evidence.

18. As also earlier noted, the Applicant subpoenaed Mr Maurice Freixas, the appointed certifier, and he was cross-examined by Mr Robertson and by Mr Pickles.

19. Extensive documentary evidence was tendered, comprising, principally:

• material exhibited to the affidavits of Ms Morphett and Mr Taouk; and

• material from the records of the Second Respondent, the Fifth Respondent and the firm, Dix Gardner Group Pty Ltd, Mr Freixas’ employer.

Other evidence

20. A range of other documents were also tendered.

Exhibits A, B and F

The terms of the interim injunction

21. At 1.00 pm on Wednesday 21 August 2019, I advised the parties, in open court, that I had determined that it was appropriate that an interim injunction be imposed, and I made the following orders:

Noting the giving by the Applicant, by its counsel, of the usual undertaking as to damages, the orders of the Court are:

1   The First and Second Respondents, by themselves, their servants and agents, are restrained, until further order, from carrying out any further works in reliance upon Development Consent DA 136/2012 (as modified) and Development Consent DA 2015.98.1 (as modified) and Construction Certificate No. 16/0475-02 issued on 8 March 2018 for bulk excavation, shoring and piling; and

2   First and Second Respondents are jointly liable to pay, as agreed or assessed, the Applicant’s costs of the hearing concerning Prayer 10 of the Applicant’s Notice of Motion filed in Court on 7 August 2019 unless my Associate is notified by 4.30pm on Friday 13 September, by a party, that that party wishes to be heard to propose some different costs order.

Why the interim injunction was made

Introduction

22. These are my reasons for concluding that it was appropriate to issue the interim injunction.

23. Given the comparatively short time until the substantive trial of the issues and the wide range of matters dealt with in cross-examination of Mr Freixas and Mr Taouk, lengthier extracts from the transcript are included than might otherwise have been expected to be the case in order to understand the conclusion I reached.

The tests for whether to issue an interim injunction

Introduction

24. In considering whether I should conclude that an interlocutory injunction was appropriate, it was necessary for me to consider not merely the issue of whether there were serious questions to be tried (a position conceded for the First, Second and Third Respondents) but also whether the balance of convenience favoured the making of such an interim order pending trial and determination of the substantive issues (Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 (Beecham)). In Australian Broadcasting Corporation v O’Neill [2006] HCA 46, a decision confirming the Beecham principles, the High Court also proposed (at [19]) that it was also necessary to consider whether the applicant for such an injunction was likely to suffer injury for which damages would not be an adequate remedy.

25. In these proceedings, although there is not an issue, in my assessment, of any significant injury to the Applicant, there are other public policy issues of “injury” which militate in favour of the granting of an injunction (particularly in light of the inadequate evidence, as later discussed, advanced on behalf of the First and Second Respondents on balance of convenience issues and alleged potential financial impacts on those Respondents).

26. The public interest that I consider is necessary to be taken into account is that of the protection of the land use planning and development consent and control system embodied in the Environmental Planning and Assessment Act 1979.

27. In GittanyConstructions Pty Ltd v Sutherland Shire Council(2006) 145 LGERA 189; [2006] NSWLEC 242, at [104], Preston CJ refers to the need for the upholding of the integrity of the system of planning and development control. Although these sentiments were expressed in Class 5 proceedings, they are equally applicable in Class 4 civil enforcement proceedings such as these (see also Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89 at [35]; Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235; [2005] NSWLEC 198 at [32]). This protective necessity is significant in light of the nature and seriousness of the issues to be tried (discussed below) and the inherent questions concerning the compliance/non-compliance with the mandated statutory regime involved.

Are there serious questions to be tried?

Introduction

28. Mr Pickles SC, counsel for the First to Third Respondents, conceded, in his written submissions (and, subsequently, his oral submissions), that there were serious issues to be tried arising out of the matters which had been raised by the Applicant in its original Summons. It is not necessary to reproduce what was pressed in that summons or the two subsequent iterations expanding on the matters originally pleaded.

29. In light of Mr Pickles’ concession, it is unnecessary for me to set out in great detail why I am satisfied that this is the case. However, it is appropriate to explain, at least briefly, why I am satisfied that this is the case. There are three matters appropriate to deal with in this context.

Is what has been partially constructed lawful?

30. The First and Second Respondents are having the development at the site constructed, initially, on the basis of the plans that were contained in Exhibit B. Those plans are dated 12 December 2018 and are noted as being “revision B issued for CC”. They bear a stamp from Dix Gardner Group Pty Ltd with a construction certificate approval stamp dated 8 March 2018. The Construction Certificate number and date are those shown on the Construction Certificate proper (16/0475-02 dated 8 March 2018), which was the first page of Exhibit A and to which was appended a set of structural engineering plans prepared by a different structural engineering consultant. These plans in Exhibit A bear little resemblance to the plans which are in Exhibit B.

31. I have outlined above, briefly, the nature of the documentary evidence concerning plans the subject of, or said to be the subject of, the Construction Certificate issued by Mr Freixas on 8 March 2018. The matters arising concerning the dating of the plans in Exhibit B, and the terms of the letter as the cover sheet to the plans in Exhibit F and the re-annotation of the plans in Exhibit F, require to be viewed in the context of oral evidence given by Mr Freixas and written and oral evidence given by Mr Taouk concerning the apparently significant differences in the engineering design plans the subject of the Construction Certificate issued on 8 March 2018 and the different design plans in Exhibit B. The plans in Exhibit B (also being those in Exhibit F but with a different stamping) are those which are currently the subject of the construction activities on the site.

30. Although there are significant differences between the two sets of engineering plans, no amended or new Construction Certificate has been issued that would formally endorse the new, Exhibit B plans. It was Mr Freixas' evidence that he had “approved” these new plans. He said (Transcript, 15 August, page 9 line 43 to page 19 line 46):

ROBERTSON

Q. Mr Frankcis, I'm just going to ask you another question about exhibit B that you’ve got in front of you. When that stamp was applied on 9 August 2019, was it?

OBJECTION (PICKLES). ALREADY ANSWERED

Q. When did you ask for those plans to be stamped?

A. Can't recall.

Q. Was it yesterday or last week or last year?

A. No, it should've been done in March when we first got the plans.

Q. They were first stamped in March, were they?

A. We only just covered - no - not - you're leading me. There should've been - we only discovered the - the error on the 9th. And that's when they were sent..

Q. On 9 August.

A. And - and I've - and I've given - and I've given you a letter to explain that.

Q. So you discovered the error on 9 August.

A. Yes.

Q. I want to suggest to you that that evidence is incorrect because the letter that you wrote on 12 August says references made to the structural plans forwarded to you on 9 August 2019. That was exhibit B, wasn't it?

A. (No verbal reply)

Q. The letter is tab 4 of exhibit H.

A. Which - what's - what's the number?

Q. Tab 4. Do you have exhibit H there in front of you?

A. Yes.

Q. If you go to tab 4 of the folder.

HIS HONOUR: No, not page 4. Tab 4. Down the side you will see there are..(not transcribable)..

ROBERTSON

Q. Page 191.

A. Yes.

Q. References made to the structural plans forwarded to you on 9 August. That's a reference to exhibit B, isn't it?

A. Yes, it is.

Q. So the plans were not issued in March, they were issued or forward to Mr Taouk on 9 August 2019, weren't they?

A. No, that's not correct.

Q. That's what you say in the letter and that's the answer you just gave to me.

A. I've had these plans in March and I had a meeting. And yes, maybe they're forwarded again, I don't know. It's - it's - it's an admit thing. It's not - it's not something I would normally - normally I would deal with that.

Q. Surely, you maintain copies of correspondence that you send to your clients.

A. We do. Yes.

Q. That would be on your file.

A. Yes, we do. You've got a copy of the file.

Q. There's no reference at all to these plans on your file.

A. I don't reference every single plan. Plans, especially on a building like this, change all the time. There's hundreds of plans.

Q. There's no reference on your file to receiving these plans from Mr Taouk or someone on his behalf, is there?

A. No.

Q. Is that usual for you, as a certifier, not to make a copy or to place on your file documents you receive for the purposes of a construction certificate application, Mr Frankcis?

A. Yes, we do.

Q. You do

A. We - we receive plans all the time.

Q. And you report them in your file, don't you?

A. Yes, we do.

Q. Yet that plan isn't recorded in your file, is it?

A. Correct.

Q. Does that suggest that it wasn't given to you in March 2019?

A. No, it does suggest that - it's a working plan and we've been working on it and plans go back and forward.

Q. Back and forward between who and whom, Mr Frankcis?

A. Between - there's a number of services, right? A number of disciplines. So there'll be structural plans, mechanical, hydraulic, whatever. This is just one of the many disciplines that - that we get.

Q. Are you qualified to certify structural plans?

A. Yeah. I'm a certifier, yes.

Q. No, I asked you, are you qualified to certify structural plans? Do you have an endorsement

A. Yeah.

Q. on your certificate?

A. No, I'm not an engineer.

Q. But you're nonetheless qualified to certify, and you do certify structural plans, don't you?

A. That's part of my job. I do. Yes.

Q. Who else would these plans have gone to that might explain why they're missing from the file?

A. Nobody else. We keep - we keep a file - a working file in all our projects.

Q. A single file?

A. Yeah. In this project it's - it's - it's a - it's a sizeable file. Yes.

Q. So if the plans were issued, there would

PICKLES: Sorry, I just have to object to the proposition put. The proposition keeps being put that these plans were not in the file. They are in the file. They're in the file at p 149 and following underneath a letter from TQM Consulting Engineers. The facts my friend is putting this witness are completely false. The plans are in the file and they're under a covering letter of 5 March 2019.

ROBERTSON: My questions were addressed to exhibit B. That's not exhibit B. Those plans aren't stamped. There are no stamped plans. Exhibit B doesn't occur.

PICKLES: Well, you better make that clear. The suggestion my friend is putting to this witness is that he never received these plans before 9 August 2019.

ROBERTSON: I'll withdraw that if I made that suggestion.

PICKLES: You did.

ROBERTSON: I'll show you the plan at 148 and following. Do you see

HIS HONOUR: The witness is there, Mr Robertson.

ROBERTSON

Q. Do you see 148?

A. I do.

Q. The plans underneath it.

A. Yes, I do.

Q. And they were provided to you on or about 5 March 2019?

A. That's correct.

Q. But there is no evidence of those plans having been issued to TQM, is there? In your file.

A. What do you mean? Can you rephrase that?

Q. When you received those plans on 5 March

A. Yep.

Q. are they the plans that you gave to an administrative assistant to stamp?

A. No, these are. And you'll see there's a difference. There's a whole bunch of plans. There's probably about 30 or 40 plans here. And I probably picked, I don't know, 10 to be stamped. Not the rest.

Q. Not the rest.

A. Yes. Because I've - I've done an assessment. Right. And I've gone, okay, I want plans A to 10 and not 10 to 20. All right. So that's - that's what I've handed to be stamped.

Q. When did you do that? On 5 March?

A. Yes. Actually - actually, it's not - no, not 5 March. 5 March is when I received them and I had a meeting. So that's on the 6th, the day after. Because after that - after I meet with my client, I usually have some time and then look at the plans. And that's where I've gone and I've picked from those 30, 40 plans that I given, I picked probably 10 to be stamped.

Q. To be stamped what?

A. Received.

Q. Those plans that were issued to be stamped "received", when were they sent out?

A. I don't think they were sent.

Q. No. Because they were for your information, weren't they?

A. Yeah, they form - they form of the - the - of the file, yes.

Q. If we go back to page 191 - your letter of 12 August 2019 - the structural plans the were forwarded to TQM on 9 August 2019 were the ones that were stamped in March 2019. Or some time later.

A. I'm - I'm not sure what - what you're asking. Can you put that in a different way?

Q. Exhibit B, that's before you

A. Yes.

Q. that is stamped - it has a stamp on it

A. Yep.

Q. was forwarded on 9 August 2019 to TQM. Is that what you were saying in this letter?

A. No, I'm saying that - no, that's not what I'm saying. And - and maybe I'm incorrect in - in the wording because I'm not a words expert. What we forward is these plans, we discovered our mistake which is a clerical mistake and we just forwarded it to - that's all.

Q. So you discovered a mistake. How was that mistake brought to your attention?

A. Because there was - there's proceedings and everybody is jumping up and down and I've been called and - and what - what plans. To be honest I can't - I can't really think, like, I do a lot of - that's what I do for a living, I do plans, and the plans that I look at today are not the plans that I look at tomorrow.

Q. Mr Frankcis, this letter is sent on 12 August and it attaches what it describes as "the correct plans" with the relevant electronic stamp.

A. Yes.

Q. Those are plans - do you have them before you, exhibit F.

A. No, I don't.

Q. I'll show you. I'm told that they're the ones in tab 4 of the bundle.

HIS HONOUR: Starting at 192.

ROBERTSON

Q. Just behind the letter.

A. Yeah.

Q. So you sent those on the 12th according to your letter.

A. Yes.

Q. In the first sentence of your letter you refer to the structural plans forwarded to you on 9 August. Were those exhibit B plans?

A. No. What I've done is I've got a whole bunch of plans. I picked the ones that I thought should be stamped. Right. Which is exhibit B.

Q. "Stamped" what?

A. Received.

Q. But that's not exhibit B.

A. That's not

Q. It's not stamped "received".

A. That's correct, and that's not my error. That's a - a clerical mistake.

Q. Sorry, Mr Frankcis. Your letter says, "Reference is made to the structural plan forwarded to you on 9 August 2019." You only wrote that letter a matter of days ago, didn’t you?

A. That's correct. The 12th.

Q. You must have had it in mind that on 9 August 2019 some structural plans were forwarded to TQM when you wrote the letter.

A. Correct. Yes.

Q. Those plans were exhibit B, weren't they?

A. No, they were not. They're these plans. Exhibit F or whatever you call it.

Q. Exhibit F.

A. Yes.

Q. So what other plans did you send under this letter that you refer to at the end of the letter as correcting an error?

A. No other plans.

Q. Sorry, could you look at the letter again, 12 August, Mr Frankcis.

A. Okay. Maybe - maybe my - my wording is not perfect. I'm not, you know - I'm a surveyor not a - a - a solicitor. That's the best explanation that I can give you. If that's wrong, then I apologise, but

Q. I'm not suggesting it's wrong, Mr Frankcis. I'm asking you whether the plans that were forwarded on 9 August 2019 that you refer to in this letter, the incorrect plans, were exhibit B.

A. No. I've answered that and I said it was exhibit F.

Q. Exhibit F is a correct plan, isn't it?

A. Yes.

Q. So the letter should be read to mean that on 9 August 2019 you were forwarded the correct plans, but on reviewing your file you discovered that an administration error had occurred and that you had incorrectly stamped them. How is that evidence consistent, Mr Frankcis, with your previous answer?

A. I'm not a solicitor. I don't give evidence. I am just telling you and explaining to the best of my ability as a surveyor, not a solicitor, that these are the correct plans, that's it.

Q. No, sorry, this is a letter that you wrote to your client, wasn’t it?

A. Yes.

Q. Telling the client that you'd sent the client the wrong plan, an incorrectly stamped plan. You open the letter by referring to sending it to them on 9 August, that is, the incorrect plan. There's nothing legalistic about that, Mr Frankcis, it's just plain English language, isn't it?

A. Yes, it is.

Q. That happened, didn’t it?

A. I - yeah, I tried to keep my letters as short as possible, yes.

Q. But that happened, didn’t it, that the incorrect plan was forwarded on 9 August, and you corrected it on the 12th?

A. Yes.

Q. The incorrect plan is exhibit B and the correct plan is exhibit F, isn't it?

A. Correct.

Q. I might just show you a document, Mr Frankcis. I'll just show you an affidavit of Mr Taouk. Have you seen that affidavit before?

A. No, I haven't.

Q. Could you turn to page 3 of it, please. I'm going to ask you to read a couple of paragraphs. Before I do, can I ask you this, does the effect of this letter that you forwarded or there was forwarded to TQM on 9 August the plans which are now exhibit B, and they weren't earlier forwarded with a stamp on them to TQM.

A. Okay. Yes.

Q. Just if you could read paragraph 14 and 15 to yourself.

A. Okay.

Q. You had a meeting with Mr Taouk on 5 March, did you?

A. I did.

Q. He gave you a USB and the hard copy of the plans, part of which are in exhibit B and exhibit F.

A. Yes.

Q. Which he refers to as the revised shoring and piling methodology plans.

A. Yes.

Q. He said he took you through the design and the drawings to demonstrate consistency with the approvals.

A. Yes, that's correct.

Q. Did you then phone him on 6 March

A. I did.

Q. and tell him that the plans were approved?

A. Yes.

Q. That you'd approved the plans.

A. Yes.

Q. In the sense that you'd issued a construction certificate for them.

A. No. There's no new construction certificate, the plans are consistent.

Q. Sorry.

A. The plans are consistent. I haven't issued a second or a modified construction certificate.

Q. But you're in the middle of considering an application to issue a construction certificate because of changes to the development, aren't you?

A. Change of methodology

OBJECTION (PICKLES). QUESTION WITHDRAWN

Q. You're in the middle of considering an application for a construction certificate, aren't you, from TQM?

A. No, not really because it's - it's just different methodology for the same, the hole is in the ground, it's a hole in the ground.

Q. I'm not asking you to justify the plans, I'm just asking you what you told Mr Taouk. Did you tell him that the plans were certified?

A. I said they're approved, yes, because I did - I did actually have - after - after I had a meeting I did have a look at the plans, so - so I took that, and I took the ones I wanted, and I said, "Yeah, that's fine. It's all good." But I'm not issuing a new construction certificate.

Q. Then what was the sense of approval, what did "approval" mean?

A. I'm not taking all of the plans, right. I'm taking what I think is relevant. Right. And these plans - construction plans, there are the ones that are just superfluous. These things change all the time.

Q. Relevant to what, sir?

A. They're relevant to the site. They're relevant to the conditions of the site. They're relevant to the fact that when some of the excavation was done they - they found - saw that it wasn't capable of piering, so it had to be changed.

Q. Sorry, are these just plans submitted for your information?

A. No, they're consistent with - consistent with the CC.

Q. There's a CC already been issued, so why are you receiving plans just to inform you about things that have happened

A. Because it's methodology, it's not

Q. at the CC? Sorry?

A. It's just methodology.

Q. No, no. The CC had been issued.

A. Correct.

Q. Were these plans submitted to you for certification?

A. No, they're for - more for information because it's - it's a - it's a methodology issue. It's not - the hole in the ground is still the same.

Q. So the plans weren't submitted to you for certification.

A. No, they were not because there was no application. There was never an application for any certificate.

Q. I'm sorry, sir. I've just taken you through the correspondence from you to TQN about an application for a construction certificate, to which these plans related, did they?

A. For there to be an application there needs to be an application. There's no application.

Q. Are you sure about that?

A. Yes.

Q. Just have a look, if you wouldn't mind, at page 72. That's an application for a construction certificate, isn't it?

A. Yes, it is.

Q. That's on your file.

A. That's correct.

Q. Can you have a look at your letter at page 115. It opens with the words, "References made to your request for construction certificates for the above development."

A. Yes. This is the standard - this is the standard letter that we use.

Q. It's a standard letter that you use when someone applies for a construction certificate, isn't it?

A. Yes, it is.

Q. At the time of your March 2019 meeting the application for a construction certificate for the project had not been determined, had it?

A. No.

Q. You knew it couldn't be determined until condition 5 had been complied with, relating to the VPA and the payment of monies to Burwood Council.

A. Correct.

Q. So when you issued whatever you did on the 5th or 6th of March what you were not doing then was issuing a construction certificate certifying exhibit B, or the plans in exhibit B, were you?

A. I'm not issuing any certificates.

Q. No, and you didn't tell Mr Taouk that you were certifying those plans, did you, because you well knew that you couldn't, until condition 5 had been complied with?

A. I could have issued an amended construction certificate for the new methodology.

Q. I'm not asking you what you could have done. I'm putting to you that you knew you couldn't issue a construction certificate at that time because condition 5 had not been complied with.

A. I agree, yes.

Q. Council had told you that

A. 100%, yes.

Q. the previous year.

A. Yeah. I agree.

Q. So when you spoke to Mr Taouk, you could not have said to him that you had certified these plans, could you?

A. No, I said - I didn't certify it, I said I approved.

Q. What, you liked them?

A. (No verbal reply)

Q. You approved of them.

A. I approved them, yes.

Q. Of them

A. I didn't certify it.

Q. You approved of them.

A. Listen. Yes

Q. You liked them. You thought

A. I

Q. Sorry.

A. I approved of the plans 'cause I think they're consistent. Methodologies change all the time.

Q. So you gave them advice about the design of the project, did you?

A. No, I didn't.

Q. You know you can't give advice to a developer about designing

A. Correct. I'm not

Q. a project.

A. giving advice. I don't know why you're asking that. I didn't give - I'm not giving advice.

Q. Then you told him that you approved them, you weren't approving them for the purposes of certification, you were just telling him that you liked them, or

A. No, I'm saying that I

Q. agreed with them.

A. they are consistent. I am approving the consistency of these plans with what was approved. Because

Q. So

A. the hole - let me finish please - is the same length, the same breadth, same depth.

Q. So the plan

A. Methodology changes, but the hole is - what we're approving is a hole in the ground.

Q. So the plans, sir, were not provided to you for certification, in your view.

A. No.

33. In his affidavit, at [14] and [15], Mr Taouk said:

14   On 5 March 2019, during a meeting between myself and Maurice Freixas, I handed Maurice Freixas, the PCA, a USB which contained plans that depicted the Revised Shoring and Piling Methodology (Revised Shoring and Piling Methodology Plans) with the intent of modifying the CC. I also provided a hardcopy of the Revised Shoring and Piling Methodology Plans to Maurice Freixas. Maurice Freixas did not require a form to be completed for a modified CC and there was no fee payable to modify the CC with the Revised Shoring and Piling Methodology Plans. I took Maurice through the design and the drawings to demonstrate consistency with the approvals.

15   On 6 March 2019, the Maurice (sic) informed me by telephone that he had assessed the Revised Shoring and Piling Methodology Plans and that they were approved, (Exhibit B in the Applicant’s Motion). I am informed by Maurice Freixas that it is the practice of Dix Gardner to stamp any approved drawings with the date and construction certificate number to which the (sic) applies to the relevant approved drawings, and that these documents would remain on Dix Gardner’s file.

34. He was cross-examined on this by Mr Robertson and said, relevantly, at (Transcript, 15 August, page 83 line 43 to page 90 line 44):

Q. When did you receive the plans that were stamped certified, you know, the exhibit B plans?

A. Last Friday.

Q. Did they come with any covering letter?

A. No.

Q. They just turn up on the email or

A. No. What happened was my lawyer put me under immense pressure, because I was in the middle of a thousand other tasks while running my own business, and requested a number of drawings, and I was in the city. So I ran to the PCA's office and requested a copy of those drawings from the secretary that was there and I got them off her.

Q. You got them from the secretary, did you?

A. Yes.

Q. Right, physically, a physical copy?

A. Yes.

Q. Because the document we were provided with I'm told has a metadata indicating that it's electronically produced. Are you sure it wasn't emailed to you?

A. No, it wasn't.

Q. All right.

A. And that was given to me on a USB, that wasn't emailed to me. Because I was in the city.

Q. You got it on a USB, did you?

A. Yes.

Q. All right, not a physical

A. Not by email, no.

Q. And not a physical document?

A. No.

Q. Just USB?

A. Just the USB, because we had a deadline to produce those drawings by 10.30 and I was very late and I was under a lot of pressure. So I requested the USB, and I took possession of the USB.

Q. Did you speak to Mr Dix

A. No.

Q. Or Mr Frankcis?

A. No.

Q. Then on the Monday, which I think is Monday the 12th, which is this week, another letter turns up from the certifier saying they've given you the wrong plans. You'll have to say yes or no?

A. Yes, I received that letter, or email.

Q. The plans that you received on the - well, they were received by data I suppose on the thumb drive - you'd never seen the plans stamped before, had you?

A. No.

Q. You have, as you have told us, a number of projects in which you're developing land and building buildings and have a lot of experience with construction certificates, haven't you?

A. Yes.

Q. You know that you've got to make a written application for a construction certificate?

A. In relation to the works it pertains to.

Q. Sure, but you've got to make an application in writing, haven't you?

A. Absolutely.

Q. And you have to make an application in writing for a modification to a construction certificate, don't you?

A. If it's a departure from the approved DA, yes.

Q. Well, whether or not it's a departure from the approved DA, if you are making an application to modify you know you have to do it in writing, don't you?

A. No, that's not my understanding.

Q. I thought that's what you just said?

A. I said I would make an application if there's a modification to the counsel approved drawings. Not a modification to a methodology. We're both

Q. I'm not asking you about methodology or anything like that. But you know that if you want to make a modification to a construction certificate for any reason, you must do so in writing, don't you?

A. Well, if that's what you say, yes.

Q. But you know that, don't you, from your experience?

A. No, I don't.

Q. But you were very firm in your answer previously about needing to submit applications for construction certificates in writing.

A. Correct, which those applications relate to the works they pertain to.

Q. You've never been in a situation where you've had to modify a construction certificate?

A. Yes, I have. Where a section 96 was approved by council.

Q. When you've made the modification to the construction or applied for the modification you've done so in writing, haven't you?

A. Well, it's in writing and accompanied by a number of plans, yes.

Q. It's a formal process, isn't it?

A. A modification to a CC?

Q. Anything relating to a construction certificate is a formal process, isn't it?

A. If you say so, I don't know. What does "formal" mean?

Q. The purpose of a construction certificate is to certify something, isn't it?

A. The purpose of a construction certificate is to state you've complied with a number of conditions of consent issued by a council.

Q. Yes.

A. So for example, CC1 that you're referring to, other than the drawings, there would be 50 other requirements to comply with. Be they maybe permits from council, approvals from council, payments of section 94 contributions, traffic management approvals. You can't take one - I mean, a lot of these - once the principal certifying authority is satisfied you've satisfied all those requirements for those works that you're applying for, then it issues a construction certificate, allowing you to begin the works.

Q. Yes, and the certifier writes to you and asks for information and documents and plans?

A. Yes, he writes to us during certain phases. So he writes to us during the issue of - if they're applying for a construction certificate, he'll provide us with a list of requirements for us to comply with. If we're applying for an occupation certificate, again he will write to us and request a list of certificates and items to satisfy himself to issue an occupation certificate.

Q. That's a pretty formal

A. Yes.

Q. --type of process, isn't it?

A. But in between construction certificates, there isn't much - other then mandatory inspections, there isn't much writing between ourselves and the principal certifying authority.

Q. No. You see, the principal certifying authority doesn't issue the construction certificate, does it? It's the accredited certifier that issues the construction certification.

A. I'm sorry, but I - I'm inferring it's the qualified person that issues the item in question.

Q. When you had your conference with Mr Frankcis on 6 March 2019 which you give evidence of in your affidavit, you knew at that point that the process of making a construction certificate application or modifying construction certificate was a formal process, didn't you? That's something that's done in writing.

A. No, it's not, sir.

Q. So you were satisfied that if Mr Frankcis had told you he'd approved these plans, that that was then somehow or other the issue of a construction certificate on which you could act. Is that what you're saying?

A. Can you repeat the question again. Sorry, it was too long.

Q. When Mr Frankcis told you that he'd approved this what you call the methodology plans, did you

A. They were shoring plans.

Q. Yes, revised shoring and piling methodology plans is the way you

A. Yes.

Q. --describe them in the affidavit.

A. Yes.

Q. But we both know what they are. They were exhibit - the plans underlying exhibit B. Correct?

A. I don't know. I can't remember what exhibit B is.

Q. Exhibit B is what you received on 9 August.

A. Can we just see the plans you're referring to please?

EXHIBIT B SHOWN TO WITNESS

Q. Just ignoring the stamps at the moment, those are the plans we're talking about?

A. Yes, they are.

Q. They were the plans that you were addressing in paras 14 and 15 of your affidavit, were they?

A. Yes.

Q. And you knew when you had the conversation with the certifier Frankcis that you were not making an application for a construction certificate or a modification to a construction certificate when you provided him with those plans. Is that correct?

A. No. It wasn't an application for a construction certificate. It was a modification to the construction certificate.

Q. So what you thought you were doing was applying to modify the construction certificate.

A. I was adding to the construction certificate.

Q. Right.

A. I mean, you can't look at one item in singularity. They're all - it's - to me this was issued - these drawings provide a better compliance for construction certificate 1 that was issued by the PCA.

Q. You see, if you look at the plans for a moment

A. Which page?

Q. Let's start with the last plan which is ground floor slab, that's a plan for the construction of the ground floor slab, isn't it?

A. Yes.

Q. The next plan behind it is the basement 1 slab.

A. Yes.

Q. And it goes through to basement 4 slab, and except for a part of basement four, none of those plans were in - none of those were in the CC1, the first CC, the only CC, that's been issued.

A. Yes, so therefore two wrongs don't make a right. Does it mean I construct the CC1 and have a collapsed building, a collapsed storey wall? These drawings improve on the shortcomings of the previous drawings that were issued. So these drawings in my mind fall under CC1, because they improve on the deficiencies of the previous drawings that were issued. So what you've got to understand is the person that approves the drawings relies on engineering certification. They're not experts in engineering. So you're making the assumption that the original drawings, that these drawings are the only drawings that one should look at. But what these drawings essentially do is build on the previous drawings, and there are also more drawings that build on these drawings, more detailed shop drawings. One set of drawings can't be taken in singularity from other drawings. They all fall under the heading Shorting and Excavation, CC1.

Q. Thank you. When you said the certifier wasn't an expert, but relied on an engineers' certificate, who was the engineer who gave that certificate?

A. From memory my office. I think it was Mena Daniel. He provided an engineering compliance certificate that accompanied these drawings.

Q. To the best of your knowledge, the certifier made no independent examination of those issues and didn't retain any independent engineer to satisfy?

A. That's a question you have to direct to the certifier. I can't answer that.

Q. But you don't know. I asked you to the best of your knowledge.

A. I don't know.

Q. But you know that anything the certifier did relied upon that certificate.

A. Which certificate is that? CC1?

Q. The certificate that was issued in 2019 by your

A. Sorry, what's the heading of the certificate.

Q. --employee. You refer to the certificate

A. I said a shoring compliance certificate. There are many certificates being issued for different components of the structure.

Q. You see, I think you describe as a certificate what's behind tab 3 of your affidavit.

A. I haven't got tab 3.

Q. I'm sorry, tab 6. I beg your pardon. That's what you described as a certificate.

A. Can I see the certificate please.

Q. I beg your pardon. I didn't realise you didn't

HIS HONOUR: Yes. He doesn't have the annexures I don't think.

ROBERTSON

Q. I'm terribly sorry. I didn't know you weren't - it's tab 6 of the annexure.

A. Yes, this is a shoring compliance certificate.

HIS HONOUR: Sorry, do I have this material?

ROBERTSON: Sorry?

HIS HONOUR: Do I have

ROBERTSON: Yes.

HIS HONOUR: What's it in?

ROBERTSON: It's tab 6.

HIS HONOUR: No. I don't have it.

ROBERTSON: Is it exhibited or annexed? I thought it was annexed.

HIS HONOUR: I run from G to Q. I only have I think 1 and 2 in your

PICKLES: There's the deficiency, and the fault is mine.

ROBERTSON: I'll take the affidavit off the top, but if I can tender the exhibits

PICKLES: Keep the affidavit there. It's easier to follow.

ROBERTSON: Tender MT1.

HIS HONOUR: You might start again so that I can understand what you're talking about, Mr Robertson.

ROBERTSON

Q. The certificate that you refer to at para 20 of your affidavit is behind tab 6, isn't it?

A. Yes.

Q. And that's given by Mr Daniel who is an employee engineer in your company.

A. Yes.

Q. Mr Daniel is I think to your knowledge a structural engineer.

A. Yes, structural engineer, technical engineer. He has experience in both - extensive advice in the design of shoring systems.

Q. He's got no qualifications in geotechnical engineering, does he?

A. Yes, he does. He did major in geotechnical engineering at university, and he's designed about 40 buildings with carpark basements. So it's not the first time he does this.

Q. So this certificate was provided with the plans that are part of Exhibit B, if I can call them that. Correct?

A. Correct.

Q. The only purpose of providing a certificate certifying that the design was in accordance with the BCA, and the Environmental Planning and Assessment Regulations, and the relevant conditions of development and consent, was that it was intended, I suggest, to be an application either for a construction certificate, or an application to modify a constructions certificate.

A. Well, this - this - this accompanies the drawings.

Q. I know, that's my point.

A. Yes, so.

Q. It's a certification, and the only point of the certification is

A. It could be a modification.

Q. is to provide the certifier with the comfort that the plans accord with appropriate standards?

A. Yes.

Q. You heard the evidence of Mr Frankcis about the meeting and his suggestion that perhaps he was approving the plans in the sense that he considered them appropriate and I think he said consistent with the CC plans that had been certified?

A. No, he said they were consistent with the - the - the DA approved drawings. And consistent with those drawings. So the end outcome was the same. The final outcome of both drawings produced the same result.

Q. I thought his evidence was that they were consistent with the certified plans, therefore they didn't need additional certification, or a fresh construction certificate to be issued, because they were just doing what the construction certificate plan allowed you to do anyway?

A. I don't know. And I don't remember what you said there. I can't recall that. But I can - but any design that we submit, it's a standard procedure in our office to - for the designer to certify the actual design. It's not something out of the ordinary. This - it's normal - normal industry practise.

Transcript, 19 August 2019, page 151 line 44 to page 157 line 28

Q. Your second affidavit. Do you see

A. Do you have a copy of that?

Q. Sorry?

A. Can I have a copy, please?

Q. It's in front of you.

A. Sorry.

Q. It's in the grey folder.

A. This one?

Q. Yes. Should be at the front of the

A. Yes.

Q. Thank you. Have a look at para 15 for me if you wouldn't mind.

A. Yes.

Q. Do you see the second sentence in paragraph 15?

A. Mm.

Q. "I am informed by Maurice Frankcis that it is the practice of Dix Gardner to stamp any approved drawings with the date and construction certificate number to which" - I think it should be - "it applies". Is that

A. Yes.

Q. "the applies"? It should be "it", shouldn't it?

A. Yes.

Q. Perhaps his Honour might make a notional amendment in the Court record to which it applies to the relevant approved drawings, and that these documents would remain on Dix Gardner's file. There are a number of things that are being stated in that sentence but I want to ask you when Maurice Frankcis informed you of these matters concerning the internal operations of Dix Gardner.

A. On the 7th, I'm not sure. 6th.

Q. Well, it's present tense so it seems that it must've been information that you obtained from Mr Frankcis when you were preparing your affidavit. Would that be correct?

A. Well, I mean it was - it was highlighted. But - but it was - but I still stand by paragraph 15.

Q. You must know when Mr Frankcis informed you of those matters for you to remember enough about the conversation for you to

A. Yeah, I

Q. state it in the affidavit.

A. Well, we - yes, we discussed it then.

Q. Discussed it when?

A. On 6 March.

Q. About the practice of Dix Gardner to stamp approve drawings with the date and construction certificate number to which

A. Yes.

Q. it applies?

A. Yes.

Q. Are you sure that you discussed that on 6 March with Mr Frankcis?

A. Yes, absolutely.

Q. The only evidence we have, it seems, in this case is that these plans were stamped on or about 9 August. Why would there be a discussion between you and Mr Frankcis in March about the stamped plans?

PICKLES: I object to that. That's not the only evidence we have. It's entirely misleading. Mr Frankcis was cross examined about these very paragraphs and he didn't disagree with them. So my friend can't put that there's no other evidence to this witness, there is other evidence.

ROBERTSON: Perhaps I should've put the question, your Honour, about reliable evidence.

PICKLES: He can't comment on Mr Frankcis.

ROBERTSON: In any event, I'll withdraw the question.

Q. So you had a discussion with Mr Frankcis on 6 March about the stamping practices of Dix Gardner.

A. Yes.

Q. And that was when, you say, Mr Frankcis told you about the practice of Dix Gardner to stamp drawings with the date and construction certificate to which it applies.

A. Yes.

Q. So Mr Frankcis told you that a drawing submitted to him in March 2019 would be stamped with the number and the date of construction certificate 1 in 2018. Correct?

A. Yes. And that was my understanding.

Q. He told you that? He said, "I will stamp this drawing as 2018 approved construction certificate"?

A. He didn't say it literally in that - in that way. But what he said - he said that these - that these drawings would fall under shoring and excavation. The change in methodology of what - what he said - what he says he referred to and what we designed differed. But - but what didn't differ was that - that they both related to shoring and excavation.

Q. I want to put to you that that has nothing whatsoever to do with the stamping practices of Dix Gardner.

A. (No verbal reply)

Q. This conversation could not have taken place in March 2019 if Mr Frankcis had told you that these plans were simply another way of doing what's already been approved. So it was unnecessary to stamp them.

A. No, we discussed the stamps.

Q. You discussed the stamps.

A. Yes.

Q. In March?

A. Yes.

Q. I gave you the opportunity, a question or two ago, to give an account of the conversation relating to the stamping and you said nothing about it.

A. I mean it was - it was a quick discussion. I can't recall the exact words. But I have to go back and - we had that meeting on site and we - and we discussed what we discussed.

Q. You've given a conversation in paragraph 15

A. Yes.

Q. of a telephone call. Not a meeting on site. Are you suggesting that there was another occasion when you had a meeting on site with Mr Frankcis?

A. We met - we met - we've met on a number of times on site. But there was - I do recall having that conversation with Maurice Frankcis.

Q. On 6 March?

A. No, I can't - I can't - I can't - it was, yes, it was on - on 6 March.

Q. In this conversation, Mr Frankcis told you that these stamped documents - retrospectively stamped documents to the date initially in construction certificate 1 - would remain on file.

A. Yes. He had them in a file. That supplements his file.

Q. In other words, they wouldn't be issued to you, they'd just remain in Dix Garden on file.

A. No, they should be issued to us.

Q. But they weren't issued to you, were they?

A. That's in hindsight now. In hindsight, I should've chased them up. But there's - there's - in - in - in - in construction, drawings have been re issued every second - every second day. There's always new revisions of drawings coming out.

Q. Exhibit B

A. Yes.

Q. or the plan underlying exhibit B was what you constructed to, wasn't it?

A. Mm.

Q. It was the shoring and excavation plan. Correct?

A. Yes.

Q. You had to have it on site, didn't you?

A. We had a copy on site.

Q. It had to be on site, wasn't it?

A. The - the plan?

Q. Yeah.

A. Of course.

Q. You had no plan on site with a construction certificate stamp reflecting that work, did you?

A. Not - no, not - we didn't have a plan with a stamp on it. No.

Q. You must've known from your experience that when a certifier stamps a construction certificate plan, it is issued to you to construct to.

A. No. Look, I - I disagree with that. Because plans are generally issued on a weekly basis on site. If we had to stamp every plan we received then, I mean, the whole - the whole process would be - would be in paralysis. You don't - for every - every time you receive a drawing, you don't - you don't run to the certifier and get it - and - and - and get it approved.

Q. I want to suggest to you, sir, that the evidence you have given this morning

A. Yes.

Q. about your conversation with Mr Frankcis about stamping having occurred on 6 March is a fiction. It's made up. What do you say about that?

A. I disagree.

Q. I want to suggest to you that if you had any conversation about stamping with Mr Frankcis, it would've been in August, this month, this year.

A. No, it was in - it was in March.

Q. What pressure did you put on Dix Gardner to release a plan to you with a construction certificate stamp on 9 August?

A. No pressure.

Q. It just appeared from the heavens, like rain dropping

A. No.

Q. from the heavens, did it?

A. No, it didn't.

Q. You had no context at all?

A. No.

Q. You must've phoned Frankcis or someone in Dix Gardner to say that you needed the stamped plan.

A. Yes.

Q. When did that conversation take place?

A. Last - Friday week, I think.

Q. Last Friday. On the 9th.

A. Friday week.

Q. On the 9th.

A. Yes.

Q. On the date on which they were produced to this court.

A. Yes. Yes.

Q. On the date that you

A. Yes.

Q. went to the office and got a thumb drive with the stamped plans on it.

A. I - I got a thumb drive.

Q. Yeah.

A. No.

Q. How did the office know to produce a thumb drive or to produce the plans to you? You must've been in contact with them earlier.

A. Yes, I requested a copy of those plans.

Q. Who did you speak to?

A. Maurice.

Q. On the 9th?

A. It would've been on the 9th, yes.

Q. And you told him, did you, that you were under pressure from you lawyers to produce them?

A. No. I was - I had to produce all the drawings.

Q. You told him, did you, that you were under pressure to produce them?

A. I don't remember what I told him.

Q. Did you ask him for a stamped construction certificate plan

A. Yes.

Q. showing the current shoring?

A. Yes.

Q. You asked him to produce a stamped plan, didn't you?

A. I said, "I require the stamped plans." Yes.

Q. That stamped plan didn't exist until 9 August, did it?

A. It could've been in his folder. I don't know.

Q. It was prepared at your request, wasn't it, to get you out of

A. I was

Q. a hole in the litigation?

A. No, no, no. I was supposed to - I was supposed to get that on the - on 6 March 2019. It obviously sat in transit in his office.

Q. What happened on 6 March, sir?

A. After it was approved it was supposed to be sent to me.

Q. Right.

A. But it wasn't.

Q. Right. Yes, and you never chased it up despite it being the plans that you have worked to for the last six months.

A. Well, no, I didn't chase it up because we were in the process of applying for new CCs and it would be a whole new set of drawings and all this would be superseded to new - to a different CC.

Q. It was quite obvious from the correspondence between Dix Gardner and your company, sir, that Dix Gardner wasn't going to stamp anything until you had met the conditions of the VPA, among many other things.

A. Yes, that was - that's

Q. Thank you.

A. That was coming out by council anyway.

35. The engineering detail in the plans attached to Construction Certificate 1 and those in Exhibits B and F are significantly different. The question of whether the plans currently being relied upon for construction purposes (the Exhibit B/F plans) are within the legal scope of the March 2018 Construction Certificate forms part of the serious issues to be explored at trial.

36. Second, given that the Exhibit B/F plans are being relied upon by the Second Respondent for the purposes of constructing multiple basement slabs, a separate issue arises for determination as to the extent to which that which is being constructed pursuant to the Exhibit B/F plans falls within the description, “Bulk excavation, shoring & piling”, this being the declared purpose for which the March 2018 Construction Certificate was issued.

The extent of the site’s excavation

37. The second issue warranting acknowledgement in the limited suite of matters I am considering, and which I accept constitute a serious issue to be tried, concerns the depth to which the site has been excavated. It is the position advanced on behalf of the Applicant that significant additional excavation has been undertaken on the site, going well beyond that for which development consent was granted by the Council. On this point, it was Mr Taouk's evidence that this additional excavation was necessary to permit the foundations of the building to be erected on bedrock. The additional excavation was necessary, he said, because, during test drilling on the site in January 2019, unstable rock on portion of the site was discovered, necessitating the additional excavation. Although the additional excavation would permit the incorporation of a fifth basement level in the development, it was his evidence that this was not the reason for the additional excavation. This was dealt with in his cross-examination in two passages. The first was in the following terms (Transcript, 15 August 2019, page 111, line 22 to page 122, line 8):

Q. Sorry, I thought you'd already excavated. You've finished your excavations haven't you?

A. So how do they go to level 1 and 2 and 3.

Q. Well, you don't have a construction certificate for that; for those levels, do you? You don't have a construction certificate--

A. No.   

Q. --for anything other than excavation, do you?

A. But we're applying for one as we speak.

Q. But you don't have one, do you?

A. Today, no.

Q. No. So you can't use--

A. But I might have one--

Q. --that equipment on site today, can you?

A. But it's equipment - it's not a Woolworths store you pluck them out of the shelf, you've got to reserve all this.

Q. What's the answer to my question?

A. I don't know what the question is.

Q. You can't use the equipment for doing work on site for which you do not have a construction certificate, can you?

A. But we've got to pre order these things, they're not available off the shelf. So even though we're not building on site, it doesn't mean we can't pre order a hoist. These questions are--

Q. Tiling. Do you have a construction certificate that authorises tiling at the moment?

A. But I'm not tiling on site.

Q. But why have you claimed delay damages for tiling? Painting. What sort of painting are you doing--

A. That's - but these tiles--

Q. --in that subterranean cavity of years?

A. No, these tiles are the tiles that we've pre ordered for the project. Just because they're not on site, doesn't mean we haven't paid anything for those tiles.

Q. You've got $5,150 as delay damages. What damages are you paying under your tiling contract?

A. They are lease costs to store these tiles in a warehouse.

Q. So you've got the tiles?

A. Yes.

Q. You've paid for them and they're in a warehouse?

A. Yes.

Q. Right. When you get a construction certificate that authorises you to finish part of the development, you'll be able to use the tiles to do that, won't you?

A. Yes.

Q. You're not using them under any existing construction certificate, are you?

A. Well, whatever; we're making the bathrooms as we speak.

Q. Sorry?

A. We're making the bathrooms for the project as we speak.

Q. Right. These are the bathroom pods.

A. Pods.

Q. And they're being tiled are they?

A. Yes.

Q. And you're using these tiles?

A. Yes.

Q. Right. So you are in fact using them, they're not just sitting in a warehouse gathering dust, they're being used to - for your bathroom pods.

A. No but--

Q. And when you get a construction certificate to install the bathroom pods, you'll be able to do so, won't you?

A. See your questions are tailored as this is a - this project consistent of a granny flat. It's a 24 storey building. It requires a lot of pre planning, pre ordering, pre payments, pre planning in terms of procuring all the materials, all the labour, all the hoists, all the construction machinery. There's a year of work in there before it happens. Once it stops - when you have pre set dates and it stops, then there are costs.

Q. No one's stopping you from constructing bathroom pods. No one's stopping you from--

A. Yes they are.

Q. --tiling.

A. Yes, you are.

Q. No one's - no we're not. The bathroom pods are being constructed off site. No injunction is going to prevent you from constructing those.

A. After they finish a batch of pods, each pod is as big as this room; where do they get stored if they're not going to site.

Q. They're not going to site anyway because you don't have consent--

A. But they're scheduled to go to site.

Q. --to install them.

A. But they're scheduled to go to site. I mean, really, this is--

Q. When?

A. Based on our construction program.

Q. Well, are they going to be installed in the basement, are they?

A. We can't

Q. Basement 4 or basement 3?

PICKLES: I'm sorry. Your Honour, I just really have to object to the way my friend is badgering the witness. It's obtuse, actually. We know obviously that my friend's application for an injunction would have all construction cease, which means that the first and second respondents can't go on with the second stage of construction either. The second CC. It follows as it follows the first construction certificate. If that is stopped then it can't go on. The fact that it hasn't been granted yet is neither here nor there. The fact of the matter is the breadth of the relief that he sought would prevent us from doing anything and that must include everything that follows from today or Monday. That's what's sought.

ROBERTSON: Your Honour, I don't need to press the question if that was an objection.

Q. Mr Taouk, do you have a geotech report on the shale problem?

A. Yes.

Q. Where might that be?

A. It's in one of the - there was a report by one of our - one of our engineers that was sent to Maurice. I can't remember which tab it was, but it was

Q. There's a two page letter from him annexed to your - at tab 3 of your affidavit.

A. Yes.

Q. Is that what you're talking about?

A. Which?

Q. Tab 3 to your affidavit. I think you've got it there.

A. Tab 3. One moment. That's not the report, no, that's just describing what's happened.

Q. Is it behind tab 4? Something called a spoon test.

A. Yes.

Q. And that's what you rely on, is it?

A. No, there was a number of tests that - a number of ground - ground tests that we undertake based on our previous experience. So we do

Q. One would expect to have a professional geotechnical report with bore hole logs and compression estimates and things like that.

A. Compression estimates?

Q. Well, the - yes.

A. Why would you want to

Q. Well, to test the hardness and the ability of the ground or sub ground

A. Yes.

Q. to sustain pressure.

A. Yes.

Q. And where is that report?

A. There - there would be notes - I mean, there's - there was a - so there's tab 5 here, which identifies the quality of the rock.

Q. I'm looking at an email from Mr Frankcis who may not have - certainly didn't undertake these tests. Is that your tab 5 or am I looking at a different document?

PICKLES: No, that's the same tab.

ROBERTSON

Q. Sorry, can you show me what you just turned up, please, because it doesn't seem to be in my document.

A. There's

Q. There are photographs

A. This one.

Q. you're looking at.

A. This one, yes.

Q. You'll have to show them to me.

A. Sorry.

PICKLES: It's a different tab. That's tab 4, I think.

ROBERTSON

Q. That's the spoon test.

A. Yes.

Q. So it's at tab 4, except you've got colour photos and I don't. Well, I do, actually. And that's the geotech report, is it?

A. Essentially, yes. It records the - the quality of the stone.

Q. And is there any other report?

A. No, there isn't.

Q. You see, the plans that are exhibit B or exhibit F

A. Yes.

Q. those plans refer to geotech reports, don't they? For foundations - on the front page - you can look at any of them.

A. Yes.

Q. It says, "If (1) footings have been designed for an allowable bearing intensity of 150 kilopascals on medium dense sand "

A. Well, that's - that's an error.

Q. It was your firm who prepared this.

A. Yes.

Q. So the person who prepared it wasn't

A. No. So it's - that's an internal document. That's just the cover page.

Q. I know it's a cover page, but it's the notes for the

A. It's clearly an error. We're not underlying by sand. We're underlying by rock.

Q. Yes, that's right. So who prepared this?

A. That is Mina Daniel.

Q. He's the person you have told us earlier has experience in geotech work.

A. Yes.

Q. He was unaware of the sub base of the site.

A. Before it was excavated or after?

Q. Before, I assume, if these plans were prepared in December 2018.

A. Yes, he was, and it's designed accordingly for us, if you look at the sections.

Q. The plans show that your intention at the time was to excavate the site to at least RL10.405, don't they? That's the RL for the site. The basement floor.

A. Yes.

Q. Plus piles inserted a little below that level. Is that correct?

A. It depends on when the piles reach refusal, but it wouldn't be a little. It all depends on how - the density of the rock.

Q. You had a geotech report, didn't you? Railways made the previous proprietor obtain a geotech report for the site.

A. Yes.

Q. It showed the density of the shale underlying the site, didn't it?

A. No, but it wasn't as accurate, because it didn't identify the whole site. We had the benefit - once - once it's demolished, we have the benefit of testing all four corners of the site, not just one section of the site.

Q. Where are the results?

A. We don't - we don't report the results. They're - it's internal. It's based on the inspections of our engineers.

Q. Someone must have written them down somewhere.

A. Yes, they had. In their notebook.

Q. Right, so you'll be able to produce them. If we ask you to produce those results, you'll be able to do so.

A. It's notebooks and things. I can't

Q. It's done internally by your engineer.

A. Yes.

Q. And so you say he tested all over the site. So there will be a record of those tests, won't there?

A. But the result is in - in - I mean, the two parameters in building on rock - the two test site - to check you've got no - the test site is refusals. Once you get down to the hard rock, it's rock.

Q. And you'll know what level that is.

A. What's there to test? It's based on the experience of our engineers that are certified in the works.

Q. You'll know what level that is, won't you?

A. Sorry?

Q. You'll know what level that is. You know the RL where there's refusal.

A. It varies, yes.

Q. But you'll know it, won't you?

A. Yes.

Q. And your engineer would have written it down.

A. Yes.

Q. And there'd be some record of where those tests were undertaken on the site, aren't there?

A. Yes, but they've taken photographs too.

Q. Good. Then they can be produced, can't they?

A. It's

Q. Or is it a state secret?

A. It's not a state secret. It was open. It was inspected by counsel and everybody.

Q. So you can produce those documents.

A. So - but the test was - it's about the machine refusal. When the machine can't refuse, that's where it stops. That's the test. It's not a test where it's reporting to another - there's no - there's no results to submit for someone else for review.

Q. Sorry, sir. These tests were undertaken to determine to level to which you could excavate, weren't they?

A. Yes. So it's - the test - the test consists of a drilling rig drilling into the ground.

Q. Excavation costs money, doesn't it?

A. Very expensive.

Q. So you'd want to be sure that you only needed to excavate to the depth at which you struck a hard rock base

A. Yes.

Q. --that could take the pressure.

A. Yes.

Q. So given the fact that it costs a lot of money. Given the fact that you don't want to over-excavate because of that reason, you would have ensured that there was a proper test undertaken.

A. Yes.

Q. You will be able to produce the evidence of that test, won't you?

A. Yes. The evidence is the inspection of our engineers on site. This is not a report for a third party. It's a report for our purposes. So when the engineer is supervising on site, he ascertains the depth of the footing.

Q. You see, you had determined by December 2018, shortly after you bought the site, that you wanted a further basement, a basement 5.

A. No.

Q. You lodged plans with counsel, didn't you?

A. When were they lodged?

Q. The modifications.

A. At the time - I mean, those plans had nothing to do with the - they were lodged in May.

Q. Yes, they were lodged in May.

A. That's what your colleague said.

Q. When were they prepared?

A. Our drawings? They were prepared based on the testing that we did in January on site.

Q. What testing did you do in January?

A. It's a pile rig, testing - drilling through the rock.

Q. And you would have got a report.

A. A report from who? It's based on the depth of refusal.

Q. Yes, and there would be a record

A. There could be notes somewhere.

Q. --of the depth of refusal based on the pile rig done in January.

A. Yes, there could be if I looked for it, yes.

Q. Good, and you can produce that to the Court, can't you?

A. This was based on a drill rig drilling through the rock. That's the actual test.

Q. You'll be able to produce records from that test to the Court, won't you?

A. If we find it, if we have - they're just photographs, yes.

Q. Sir, you had a plan on 13 December that was amended on 21 March 2019 which showed a basement 5 to be constructed at RL 8.355, didn't you?

A. No.

EXHIBIT G SHOWN TO WITNESS

Q. Go to exhibit G, tab 11. Have a look at page 85, please.

ROBERTSON: Sorry, we're just trying to find another copy for the witness.

Q. I've just tagged page 85 for you in exhibit G. That's basement 5. It has a floor level of 8.355. You'll see that in the rectangle just under the words "basement 5" within the drawing.

A. Mm.

Q. And the date of this plan was - issue A was 13 December 2018, and issue B was 21 March 2019, and it's described as a construction certificate plan. The plans accompany a letter from your transport consultant describing them as architectural plans. It has VA references to them and confirming that the design provisions made in the assessed plans are generally consistent, et cetera, with AS 2890, which you may or may not know is the standard for the parties. Now, I want to ask my question again. You had an intention, did you not, whether you had approval or not at the time, that you had an intention to create a basement 5 level at RL 8.355 as at 2018, December 2018, shortly after you bought the property? You wanted to increase the development density. There's nothing wrong with that. I'm just putting to you that that was your intention there, wasn't it?

A. No.

Q. By March 2019, it was your intention, wasn't it?

A. Well, in late March - I mean, what prompted this was - what - what prompted this stage was probably - what prompted the application that you keep referring to, the section 4.5 modifications, was to recoup some costs from the additional excavation that occurred on the site. It's - it's - one doesn't follow the other. So when we - when - when the defective rock was identified in a certain area, obviously concept drawings were made for an application that was being prepared. Photos were being done to see if there was an ability to increase the - the car space.

Q. You hadn't excavated

A. Yes, we had.

Q. --by then.

A. Yes, we had. We had a drill rig drilling in the ground.

Q. In your affidavit at paragraph 16, you say, "Excavation commenced later, February 19 or early March 2019. By late May 2019, excavation had reached approximately RL 12". You hadn't got down near the area which is the alleged over excavation, had you?

A. It doesn't - the - the - the drill rig, the testing that we did prior to us beginning excavation revealed the defective rock in

Q. Whose drill rig was it, sir?

A. I've haven't got - it was a

Q. Contractor, was it?

A. Yes.

Q. The contractor would have kept records.

A. I would say so, yes.

Q. And would have provided you with a report.

A. No. We requested in certain places, in various places around the site.

Q. So it was in January when that occurred that you decided to excavate down to

A. From memory, it was early January

Q. RL 8.

A. -early February, I think.

Q. Or RL 7.7. That was when you made the decision to excavate to that level, was it?

A. No.

Q. I thought you said it was based on the tests that were done by the drill rig

A. Yes, but it was

Q. in January.

A. But obviously you assess, redo it. It's only like one..(not transcribable)..you've got to excavate a certain level, assess, re check, excavate, assess, re check.

Q. You see, the statement by Mr Daniel which is behind tab 3 of your affidavit said - this is page 5, tab 3, whatever the exhibit number of the affidavit.

SPEAKER: I think it's four.

ROBERTSON

Q. Four. At the top of page 5, he said, "On site inspections during excavation revealed fractures in the rock formation at RL 12 along the north east section of the site".

A. Where is that shown, sorry?

Q. I'm just reading you, sir, from the top of page 5 behind tab 3 of your affidavit, Mr Daniel's letter. You might have the same

A. Sorry

Q. problem again. Have a look at tab 2 and see if you can find a letter dated 12 June 2019 on your firm's letterhead.

HIS HONOUR: I think he's in the wrong folder. I think the witness is in exhibit G.

ROBERTSON

Q. Your affidavit. I'm referring to the annexure to your affidavit.

A. Yes.

Q. What on-site inspections during excavation took place, because you see your evidence was that it was drilling done before excavation in January -

A. Yes.

Q. --that revealed these rock fractures.

A. Yes.

Q. What was the on-site inspection during excavations at RL 12 metres?

A. Yes.

Q. What are they? What were they?

A. They were inspections. I mean, the site isn't excavated concurrently at one level. You start off on one side and work your way across. So one side is higher than the other.

Q. Yes, but you see in your affidavit, para 16, you say you reached RL 12 in late May 2019.

A. Yes.

Q. Was that when you decided that you needed to excavate to 7.7 RL?

A. No. What happens is we encounter this defective rock, this mud stone which was along the north-eastern corner of the site. So there are layers that you are excavating, and you're hoping that once you extract that layer, you get down to the underlying bedrock. So it's a continual monitoring of the excavation to ensure that you reach down the line bedrock.

HIS HONOUR: MFI E.

MFI #E PHOTOGRAPH OF EXCAVATION

ROBERTSON

Q. Now, your Honour, I now have a second copy of that material. So I will tender the MFIs, I think, is the best way of dealing with it.

HIS HONOUR: Is there any objection to any of the material, Mr Pickles?

PICKLES: Not the MFIs, no, that my friend has referred to. Except some - was MFI B with or without

ROBERTSON: No, I wasn't intending to tender MFI B, only

HIS HONOUR: C, D and E, I was assuming.

ROBERTSON: C, D and E.

PICKLES: C, D and E? All right, thank you.

HIS HONOUR: As one exhibit, Mr Robertson?

ROBERTSON: Yes, your Honour.

HIS HONOUR: Exhibit U.

EXHIBIT #U PHOTOGRAPHS MFI C, D AND E TENDERED, ADMITTED WITHOUT OBJECTION

ROBERTSON: Might they continue to retain their MFI markings?

HIS HONOUR: They will do that.

ROBERTSON: Thank you.

HIS HONOUR: If only to demonstrate their provenance.

ROBERTSON: Indeed.

Q. Now, did you find out who the drill rig was owned by?

A. Auburn Civil.

Q. Yes, and did they produce a report to you from the drilling they did?

A. They don't produce reports, these are field tests.

Q. Did they produce a report to you as a result of the drilling that they did?

A. No. But they

Q. So they produced nothing in writing about the results of the drill?

A. No, the tests are done on-site.

Q. That's the extent of information that you have produced concerning the geotechnical question of the shales, isn't it?

A. Yes.

39. It is to be noted (but merely to be noted) that there is currently a modification application before the Council to permit the incorporation of a fifth basement level.

40. This position is to be contrasted with plans in evidence prepared by Design Workshop Australia and TQM Consulting Engineering (an in-house element of the Second Respondent) that show the layout for a fifth basement level. These plans are in evidence as set out in the table below:

Date	Location	Author	Drawing Name	Revision No.
21 December 2018	Exhibit G, Folio 13	TQM Consulting Engineers	Shoring Plan showing Level B5	B (Revision A noted as 14 December 2018)
21 March 2019	Exhibit G Folio 85 and Exhibit H, Folio 53 and 80	DWA	Floor Plan showing - Level B5	B (Revision A noted as 13 December 20 18)

41. Clearly, these plans predate the January 2019 drilling said by Mr Taouk to be the sole reason for the additional excavation beyond that which had been necessary to construct that which was approved by the Council.

42. Although Mr Taouk denied that there was any intention to excavate the site to a depth which would permit the incorporation of Basement Level 5, and that the additional excavation which had been undertaken had been necessary, as a consequence of the test drilling undertaken in January 2019, his explanation of how there came to be a number of plans prepared not only by Design Workshop Australia, the project architects, but also, apparently, by his own firm showing a proposed Basement 5, and predating the test drilling by more than a month, is, at this point, simply entirely lacking in credibility.

43. In this regard, Exhibit 6, an e-mail from Mr Robert Gizzi of the project architects, saying:

Just to confirm that there is no Rev A and the only drawing issued is Rev B for the Deane street project.

provides scant assistance to Mr Taouk with respect to the various fifth basement plans. I have reached the conclusion that I should disregard this e‑mail for a number of reasons:

1. First, although the DWA fifth basement plan was one of the plans predating, on its face, the test drilling, it was not the only such plan. The other fifth basement plan, indicating that it was prepared in house by the Second Respondent, also bears a date in December 2018;

2. The wording of the e-mail from Mr Gizzi is, apparently, carefully chosen and, as Mr Robertson pointed out, does not assert that no such plan existed, merely that one had not been issued;

3. As Mr Robertson observed, there is no evidence as to the question asked to which this e-mail is the response; and

4. Whatever might have been the question to which that answer had been provided was not able to be tested in these interlocutory proceedings.

44. For the purposes of these injunction proceedings, I am satisfied that the various explanations given by Mr Taouk as to how the over-excavation could have occurred as a result of drilling in January 2019 when there were earlier plans in existence evincing an intention to create a fifth basement level (a basement level merely serendipitously able to be accommodated as a consequence of the additional excavation, on Mr Taouk's evidence) is entirely unconvincing and not to be believed for present purposes.

45. For the purposes of that which I am presently dealing, I am satisfied that there is a serious question to be tried as to whether the First and Second Respondents had specifically intended to excavate to a depth to accommodate a fifth basement; whether they had had that intention prior to any test drilling which had been undertaken on the site; and whether Mr Taouk's evidence on that point was a fabrication.

The request for a voluntary planning agreement

46. The third issue to be noted concerns the requirement for a Voluntary Planning Agreement to be entered into prior to the issuing of any construction certificate.

47. The First and Second Respondents are carrying out development on the site pursuant to two development consents which have been granted by the Council. There is nothing of controversy in that regard.

48. However, by conditions of consent said to apply with respect to each of these development consents, it was necessary for there to be an executed Voluntary Planning Agreement (VPA) between the First Respondent and the Council prior to the issuing of a construction certificate. Such a condition had not been fulfilled prior to the issuing of Construction Certificate 1 by Mr Freixas. As a consequence, the Applicant submits that Construction Certificate 1 is of no effect. It is the position, however, that a proposed VPA that would meet the terms of the condition, if executed, has recently been on exhibition as statutorily required and, at the time of my hearing, was said to be imminent for its execution by the Council and the First Respondent.

49. The question of whether what was said to be the defect, which allegedly prohibited the issuing of Construction Certificate 1, was capable of retrospective cure by the VPA process (currently underway), if finalised, is a matter awaiting consideration at trial.

Conclusion on serious issues to be tried

50. On the basis of these three matters alone, I am satisfied that the concession made by Mr Pickles that there are serious issues to be tried is one which is correct and a concession which it was appropriate to have been made.

Delay

51. Although Mr Pickles submitted that there had been a delay between the commencement of the proceedings and the Applicant seeking this interlocutory injunction and that this delay should be disentitling, I do not accept that this is the conclusion to be drawn. Although there had been 11 working days between the commencement of the proceedings on 23 July 2019 and the filing of the Notice of Motion seeking this injunction on 7 August 2019, I am satisfied that there were a series of procedural steps for necessary information gathering purposes required to be undertaken by the Applicant before it could possibly have a valid basis upon which to found an application for this injunction. As a consequence, I do not conclude that there has been disentitling delay during this phase of these proceedings.

52. Similarly, although the proceedings were not commenced until sometime after the Applicant became aware of matters giving rise to its initial pleadings in the original Summons, the documentary evidence before me discloses a chain of correspondence between the Applicant's legal representatives and the First and Second Respondents’ legal representatives. Although It is not necessary to set out the detail of that correspondence (however, it is, as noted, in evidence), it is sufficient to observe that I am satisfied that it was not unreasonable for the Applicant to have gone through that process prior to commencing these proceedings and seeking this injunction.

53. As consequence, there is no valid complaint that there has been inappropriate delay by the Applicant in commencing the proceedings or seeking this injunction.

The balance of convenience

Introduction

54. I have earlier set out the matters that I am required to take into account in determining whether or not to issue this injunction. The third of them, the balance of convenience, requires that I weigh the desirability (in this case, in a public policy sense) and the nature of the issues to be tried against the potential impact on the First and/or Second Respondents if I was to grant the injunction.

55. In these proceedings, this requires me to consider what might be the potential financial impacts if further work on the site was to be halted pending the outcome of a trial on the substantive issues. This trial is set down for 11 to 13 September 2019, with reserve days on 23 and 24 September. Although not subject to formal expedition, these early dates were available and have been allocated.

56. The evidence upon which the First and Second Respondents relied, as submitting that the balance of convenience weighed in favour of them and that no interim injunction should issue, was founded on elements of Mr Taouk’s affidavit evidence of 13 August 2019 and from his oral evidence arising out of it. This was said to disclose the financial impact of an injunction.

Mr Taouk’s evidence

57. As I have earlier set out, the third of the matters that requires to be considered on the question of whether or not to issue an interim injunction is what will be the impact of the issuing of the injunction on the party whose activities would be restrained if the injunction was to be issued. Mr Taouk dealt with this in his affidavit of 13 August 2019 in the following terms:

35   I would estimate the value of the construction works to be around $40M.

36   I set out below the personnel that TQM has engaged on a fulltime basis at the Site.

Personnel	Contract Value
Project Manager	$171,600
Project Manager	$312,000
Administrator/Quantity Surveyor	$124,800
General Foreman	$429,600

37   If the project is stopped, TQM will be required to terminate its agreement with these personnel.

38   I set out below the contractors which TQM has currently engaged (some of which are yet to start on the Site). If the project is stopped, it will be very unlikely that TQM will be able to get the contractors to return to Site, and I concerned that the cotnractors will try to recover any unpaid amounts from the contracts from TQM. In the event that the contractors return to site, included in the table is a rate for delay damages, for which TQM will incur.

Contractor	Description	Contract Value	Delay damages (where applicable)
DWA	Architectural Services	$50,000
LandSurveys	Surveying	$140,140
OrmondCivil	Anchoring & Shotcrete	$208,425	$1,000
ACEDemolition	Excavation & Piling	$838,000
Fabcon	Hoarding and Metal works	$15,540	$250
Formgroup	Form Work, Steel Fixin	$2,002,000
Formcrete	Concrete Place	$110,000 pump $220,000 place
Soldier	Crane Operators	$50/hour crane operator, $45/hr dogman
FTIGroup	Prefabricated Stairs	$111,000
TitanHoist	Construction Hoist Installation and Hire	$154,500 + $3840/week	$3,840
CraneHire	Tower Crane Erection, dismantle & hire	$283,000 + $3800/week	$3,800
Kone	Lifts supply & Installation	$940,000	$9,400
HMOElectromasters	Electrical Works & Dry Fire	$1,430,000	$14,300
EYPlumbing	Plumbing & Wet Fire	$2,110,000	$21,100
DTCMechanical	Mechanical Works (air Conditioning)	$1,750,000	$17,500
PTC	Post Tension for Concrete slabs	$380,000	$3,800
5StarScaffolding	Scaffolding	$520,000	$3,600
EvolutionPrecast	Precast Supply	$230/m2 175mm, $300/m2 250mm.
ElephantsFoot	Grabage (sic) Chutes	$74,000	$740
GLCivil	Level 1 Electrician	$20,000	$200
ChrisosCivil	Sewer Works	$170,000
Plasterboard	Plasterboarding & Gyprock	$2,044,000	$20,440
Painting	Painting	$1,280,792	$12,808
Tiling	Tiling	$515,000	$5,150
Consulting Services	Consulting Services	$453,536	$4,535
Project Insurance	Project Insurance	$160,000	$3,077
Construction Traffic Management	Construction Traffic Management	$5,000	$96
Construction Noise & Vibration Management	Construction Noise & Vibration Management	3000/week	$58

39   Based on the calculations below, Dean St is incurring weekly interest in the amount of $71,211.81.

Amount
Land Acquisition Cost	Land	$23,000,000.00
Acquisition	$1,791,490.00
Land holding costs	$1,008,000.00
Total Acquisition Cost		$25,799,490.00
Total Payments made to date excluding land acquisition		$11,230,653.00
Total Payments to date		$37,030,143.00
Weekly Interest at 10% rate		$471,211.81

40   Based on my involvement in the project, I anticipate that approximately 456 workers from various companies will be adversely affected if the project is required to stop.

58. Mr Taouk was cross-examined extensively on this topic and the First and Second Respondents were subject to a further Notice to Produce required to be satisfied during the break in Mr Taouk's cross-examination between Thursday 15 August 2019 and the following Monday of these interlocutory proceedings.

59. Although there was limited production prior to the recommencement of Mr Taouk's cross-examination, I am satisfied that, under the circumstances where it is appropriate to conclude that an extensive volume of material was sought to be required to be produced, no adverse inference should be drawn from the limited response to the Notice to Produce, given the comparatively short time available for compliance.

60. However, it is necessary to reproduce elements of his cross-examination relevant to this. The first of them deals with the conflict between a Transfer Certificate (which became part of Exhibit R and is reproduced as Annexure C to this decision) and that which is set out in the first line of the table at [39] of Mr Taouk's affidavit. The Transfer Certificate discloses a declared purchase price of a little more than $9.9 million for the site, whilst Mr Taouk's affidavit asserts, for the purposes of describing the potential financial impact on the First and Second Respondents, that the purchase price was $23 million, more than $13 million more than had been declared on the Transfer Certificate. Mr Taouk's explanation of this discrepancy was entirely unconvincing. The relevant portion of the transcript of his cross-examination by Mr Robertson which elicited Mr Taouk’s initial explanation (that there was an undisclosed side deal to transfer units to the site’s vendor when the project was complete) and his subsequent ducking-and-weaving seeking to resile from what he had revealed, was in the following terms (Transcript 15 August, page 92, line 10 to page 95, line 8):

DOCUMENT SHOWN TO WITNESS

Q. There are three lots owned by Dean Street Holdings, aren't there? You know enough to know it owns three lots?

A. I mean, if I can refer to something, I can answer the question. But I've - not generally, I can't tell you.

Q. But you amalgamated the land specifically for this development.

A. Yeah. I don't run - so, I - I

Q. Or your predecessor did.

A. I'm a director of - I run the day to day operations of TQM Design and Construction. I have nothing to do with the running of Dean Street Holdings.

Q. Just take if from me that these are the computer folio titles for the three lots that comprise the subject land. I'll just hand them to you, I'll give my friend a copy and I'll hand a copy to his Honour, and I'll tender them in due course.

EXHIBIT #R COMPUTER FOLIO TITLES FOR THE THREE LOTS TENDERED, ADMITTED WITHOUT OBJECTION

Q. Do you see that there's no registered mortgage or other security on the title of those three lots? Just take your time.

A. Yes, I see that.

Q. Can you go to paragraph 39 of your affidavit, please.

A. Yep.

Q. You see you've said in the table that the land acquisition cost was $23 million?

A. Yes.

Q. Can I just show you a transfer. I'll tender that too, it can go with the others, your Honour. I know you're a busy man, but if you look at the transfer, you'll see that para A has Torrens title.

A. Yes.

Q. It has three lot numbers, which are the three lot numbers that I just showed you.

A. Yes.

Q. That the transferor is Sky Profit Properties, that was the vendor, wasn't it, you were the purchaser?

A. Yes.

Q. Do you see that under D, consideration was approximately $9.9 million for an estate and fee simple?

A. Yes.

Q. Can you explain the discrepancy between the $23 million you give as the land acquisition cost, and the $9.9 million which is the sum which you paid for the land?

A. Well, 'cause the land cost is $23 million. Now, one is not to infer that the $9.9 million is the wholesale. That would be - that would be a percentage of what the - what was - what was paid to the previous vendors. There's other financial arrangements in place that were paid to the vendors other than - other than that amount.

Q. Can you have a look at the stamp by the New South Wales Treasury on the contract.

A. Yes.

Q. Do you see it has a duty of $10?

A. Yes.

Q. I want to read to you section 18, subsection (2) of the Duties Act, 1997, "The duty chargeable in respect of a transfer of dutiable property made in conformity with an agreement for the sale or transfer of the property is $10 if the duty chargeable in respect of the agreement has been paid." Where is the contract of sale for this property, sir?

A. It's with Dean Street Holdings.

Q. And it can be produced to the Court?

A. Yes.

Q. If produced, will it show that stamp duty was assessed on 9.9 million dollars?

A. No. Stamp duty was paid on 9.921 million dollars.

Q. Thank you for that. Will it show that stamp duty was paid on $9,921,894.45?

A. Yes.

Q. Yet you have shown in this affidavit that the cost of acquiring the property was 20-odd million dollars. I take it that stamp duty wasn't paid on $23 million.

A. That's the current land value. You see, the land has got improvements now. You see, when this was paid, the land was unexcavated. Now that it's excavated its value is $23 million. How was it excavated? Isn't that adding value to the land, that money spent? That's a summary - I could have broken that more, but that's also including moneys that were spent in the current construction costs.

Q. No. Mr Taouk, a moment ago you told us that the $23 million comprised other consideration that you paid to the vendor. That is not shown on the transfer and on which stamp duty has not been paid. Are you changing your evidence, sir?

A. Sorry?

Q. Are you changing your evidence?

A. But I'm not the director of this company. I'm not changing my evidence, no.

Q. I'm asking you about your evidence.

A. Yes.

Q. You said earlier that the $23 million was in part the 9.9 million dollars shown in the transfer together with other consideration that you paid to the vendor. Are you changing that evidence?

A. No.

Q. What other consideration was payable to the vendor??

A. The return of apartments at the end of the project.

Q. Is that the subject of a contract?

A. No.

Q. What was it, an under-the-table deal?

A. No. It was an above-the-table deal?

Q. Where is it written down?

A. I don't run the day to day activities of Dean Street Holdings. It's written down somewhere. You've got to check with the people that run Dean Street Holdings.

Q. There would be a contract, would there, with the vendor of this property? As part of the consideration for the sale of this property

A. There could be. I don't

Q. --you are providing some apartments once the development has been completed.

A. Yes.

Q. And you have not paid stamp duty on that consideration, have you?

A. It hasn't occurred.

Q. What is the value of those apartments?

A. I can't recall.

Q. You see, you've written $23 million as the land acquisition cost and you've given two answers as to how that sum is made up. The first is that it is the money you paid to the vendor plus whatever the value of some unknown number of units might be at

A. This was

Q. --some time in the future. Just wait please. Let me finish my question. The second answer you've given is that that is not the land acquisition cost, but the land value presently. Which answer is true?

A. The answer that's the correct answer is the land acquisition was just under $10 million, and what they've done while preparing this, they've added in the moneys expended on site of $10 million.

61. Mr Taouk was also cross-examined by Mr Robertson on potential costs of delay for other contract elements giving rise to what Mr Taouk said were obligations that would fall on the First and/or Second Respondents if the project was delayed. It is not necessary to set out any extracts from the transcript of this cross-examination given that I am satisfied that the above material concerning the purchase price of the site is so unsatisfactory as to provide a basis for rejecting the accuracy of Mr Taouk's evidence on financial impacts in its entirety.

62. However, it is appropriate to observe that the further cross-examination of Mr Taouk by Mr Robertson on these matters also disclosed that other elements of what was contained in [38], earlier reproduced from his affidavit of 13 August 2019, did not provide a satisfactory basis for concluding that there would be an unacceptable financial impact on the First and/or Second Respondents if an injunction restraining them from further construction activities on the site was to be issued.

63. In addition, it is also to be observed that the assertion in [40] of his 13 August 2019 affidavit that he expected that 456 workers would be adversely affected if the project was required to stop was not, in any appropriate fashion, adequately explained and I am unable to accept it. There was certainly nothing from his written evidence concerning the various contracts entered into (set out in the table in [38] of his affidavit) which would support this proposition.

Conclusion on the potential damage to the First and Second Respondents

64. For the reasons set out in this section of the judgment, I was satisfied that there was no valid evidence which could lead me to any proper conclusion as to the scope of the likely financial impact on the First and/or Second Respondents if I was to restrain them from carrying out further work on the site, pending trial of the issues pressed by the Applicant. Although, undoubtedly, there is going to be some such impact, there is no valid, believable evidence given by Mr Taouk that would enable me to quantify, in any rational or explicable fashion, what might be that impact. As a consequence, this impact cannot weigh significantly in favour of the First and/or Second Respondents in my determination on how the balance of convenience should fall.

Issuing of the interim injunction

65. For the reasons set out above, I concluded that the interim injunction should be issued.

Other matters to be noted

Referral of Mr Freixas to the Building Professionals Board

66. It is inappropriate for me to express any concluded view, in these interlocutory proceedings, concerning matters relating to matters arising from Exhibits A, B and F and the evidence which I have earlier noted was given by Mr Freixas and Mr Taouk as to the status of the Exhibit B/F plans, and how it has come about that construction has been undertaken based on those plans, without any amendment to the March 2018 Construction Certificate.

67. However, the matters that arise from them, I was satisfied, warranted examination in a different context, namely, whether or not that which has occurred requires investigation by the Board. During the course of the hearing, prior to Mr Freixas' appearance being converted to a submitting one, I provided to his legal representative a draft of an order which I was contemplating making. The terms of that draft did not, initially, encompass Exhibit F but I subsequently revised the document to incorporate reference to it. The draft proposed that I order that that the Applicant provide material to the Building Professionals Board.

68. However, this draft was prepared prior to the oral evidence given by Mr Freixas; the oral evidence given by Mr Taouk; and the admission into evidence of the two paragraphs from Mr Taouk's affidavit earlier quoted.

69. I subsequently reconsidered what was the appropriate way to draw these matters of concern to me to the attention of the Board. I concluded that the appropriate course was to have the Registrar write to the Board enclosing a copy of this judgment and of Exhibits A, B and F. A copy of that letter is Annexure A to this decision.

Referral of the First Respondent to the Chief Commissioner for State Revenue

70. I have earlier set out, in my discussion of how the balance of convenience should fall, the evidence given by Mr Taouk in his affidavit concerning the cost of acquisition of the site.

71. I have also set out an extract from the transcript of his cross-examination dealing with the discrepancy between what was said in the table in [39] of his affidavit and that which was disclosed in the relevant element of Exhibit R (the Transfer certificate), there being a difference of over $13 million in the purchase price nominated by Mr Taouk as being the costs of land acquisition and that nominated on the transfer document in Exhibit R.

72. Whilst I have earlier discussed how I should have regard to this evidence in my more general consideration of the reliability (or, more correctly, unreliability) of Mr Taouk’s evidence, the question also arises as to whether the combination of his evidence and the Transfer Certificate in Exhibit R demonstrates that there has been an inaccurate declaration made for the purposes of calculation of stamp duty on the transaction whereby the First Respondent purchased this development site.

73. Again, it is inappropriate that I express any concluded view on this during the course of giving a decision in these interlocutory proceedings. However, I do consider that it is appropriate that this discrepancy (which, if the amount in Mr Taouk’s affidavit is accurate) appears to disclose that there may well have been an underpayment of stamp duty on the transaction of, potentially at least, some more than $700,000 requires further investigation.

74. Under the circumstances, I have concluded that it is appropriate to have the Registrar write to the Chief Commissioner of State Revenue and draw to the attention of that officer to what has emerged during these proceedings so that that may be investigated to establish whether some revenue recovery from the First Respondent might be appropriate. I have had the Registrar write to the Chief Commissioner of State Revenue enclosing:

• a copy of this decision (incorporating the relevant elements of Mr Taouk’s evidence from the transcript); and

• a copy of the Transfer Certificate from Exhibit R (Annexure C to this decision).

75. A copy of that letter is Annexure B to this decision.

The principals at Dix Gardner Group Pty Ltd

76. The two principals at Dix Gardner Group Pty Ltd, it would appear from the documentary evidence and consistent with the oral evidence given by Mr Freixas, are Mr Lyall Dix and Ms Yvette Dix. Ms Dix describes herself as a Building Surveyor and does not appear to be an accredited certifier. With respect to the Dixes, Mr Freixas said (Transcript 15 August 2019 page 37 line 12 to 45):

Q. Then some further information, I think it's provided, there's traffic reports and other documents are provided to supplement the CC application and then at page 38, there's, this might be slightly out of order, but it's the same date as the previous letter at 66, page 38, that I can - but in this letter, 38, you've elevated the reference to condition 5 to the first page and it's the second matter on that page, "Development consent conditions, provide documentation to address requirements of the conditions of consent as follows, condition 5, copy of executed VPA," and someone has written an ampersand there, "And monetary contribution." Because this is the same date as 66, do I take it then that 66 - and both are said to have been emailed on the - they are stamped emailed on page 38 and page 66.

Do I take it that perhaps the memo at 66 was sent to Mr Moran or to TQM and then someone looked at it again and decided that there should be some further information provided, or it should be restructured. Was there some reason why?

A. Yes. I - I can - I can provide verification on that. All the correspondence - it is our practise in our company that all the correspondence before it goes out and gets - gets peer reviewed by another surveyor. If - if you see in both letters, the letters were actually drafted by - well, I guess initially by me. But the final draft is Mr Dicks, so Lyle Dicks, LD and Dicks Gardner. So it's honestly done by me as - as a first draft. It goes to my boss, and he, I guess, peer reviews it. And - and if - if he's content with the responses, or what information we have, he marks it up. And - and those are the red markings that - that you see. Tick, yes, we received that information and whatever comments.

Q. Who is writing? It looks like two people have written on page 38?

A. Yes.

Q. At the top, who's writing is that?

A. The - the top writing, the smaller writing is Lyle Dicks. The bigger writing, more rounded writing is Yvette Dicks, who is also a surveyor, and also works in the firm.

77. On a number of documents, with respect to which Mr Freixas said he was the original preparer, handwritten annotations and requirements for change were made by one or both of the Dixes. These documents, relating to required information for the applications made by the Second Respondent seeking the issue of Construction Certificate 2 (for the aboveground structural shell of the building) and Construction Certificate 3 (for the fitout of the building after the works proposed for Construction Certificate 2 were completed), at Exhibit H, formed part of the file of material produced by Dix Gardner Group Pty Ltd.

78. Indeed, one of the documents (Exhibit H folios 8 and 9) was an e‑mail chain between Mr Tony Assaf, Contract Administrator at the Second Respondent, to Ms Dix concerning information required for the proposed new construction certificates. It is to be noted that Mr Freixas was not copied into this e-mail. This potentially raises the question of whether Mr Freixas was not, as a matter of fact, independently responsible for all matters associated with the construction certificate process for this project.

**********

Annexure A (289 KB, pdf) 

Annexure B (333 KB, pdf)

Annexure C - Transfer Certificate - Exhibit R (82.5 KB, pdf)

Amendments

28 August 2019 - Class of proceedings amended from Class 1 to Class 4.

28 August 2019 - Formatting required in [1] at second bullet point.

28 August 2019 - Amendments:

[1] The date 23 September next (the fourth day of a five-day hearing) is amended to 11 September next (the first hearing day).

[6] 4 Dean Street is amended to be 4 George Street.

Decision last updated: 28 August 2019