Sader v Elgammal - [2022] NSWLEC 107

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Sader v Elgammal [2022] NSWLEC 107
Hearing dates: 14, 15, 16 and 17 June 2022
Date of orders: 25 August 2022
Decision date: 25 August 2022
Jurisdiction: Class 4
Before: Duggan J
Decision:
See paragraph [123]

Catchwords:
CIVIL ENFORCEMENT – ss 9.46(1) and 6.32 of Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) – cl 145 of Environmental Planning and Assessment Regulation 2000 (NSW) – consistency of construction certificate and development consent – demolition works and construction of dwelling house – ss 4.2(1)(a) and 4.2(1)(b) of EP&A Act – carrying out of development otherwise than in accordance with the development consent – discretion – whether whole of construction certificate invalid or only that part inconsistent with development consent – adjourned for parties to form appropriate orders

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW)
Environmental Planning and Assessment Amendment Act 2017 (NSW)
Environmental Planning and Assessment Regulation 2000 (NSW)

Cases Cited:
Carriage v Stockland Development Pty Ltd (No 7) [2004] NSWLEC 148
Coffs Harbour Environment Centre Inc v Ministers for Planning and Coffs Harbour City Council (1994) 84 LGERA 324
Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Category: Principal judgment
Parties: Mark Sader (First Applicant)
Sandra Sader (Second Applicant)
Yasser Elgammal (First Respondent)
Abdul Hammoud (Second Respondent)
The State of New South Wales (Third Respondent)
Representation:
Counsel:
J Steele SC and J Farrell (Applicants)
J Reid and L Nurpuri (First Respondent)
Submitting appearance (Second Respondent)
Submitting appearance (Third Respondent)
Solicitors:
Davidson Legal Consulting Advisory (Applicants)
One Group Legal (First Respondent)
N/A (Second Respondent)
N/A (Third Respondent)

File Number(s): 2022/36734
Publication restriction: No

Judgment

Nature of proceedings

Mark Sader and Sandra Sader (the Applicants) by way of Summons filed 8 February 2022 commenced these proceedings against Yasser Elgammal (the First Respondent), Abdul Hammoud (the Second Respondent) and the State of New South Wales (the Third Respondent).
The Applicants are the registered proprietors of Lot 12 in DP 14844 located at 24 Bowden Crescent, Connells Point NSW (24 Bowden).
The First Respondent is the registered proprietor of the site, being Lot 13 in DP 14844 located at 26 Bowden Crescent, Connells Point NSW (the Site).
The Second Respondent, Mr Abdul Hammoud was appointed as the Principal Certifying Authority in relation to works to be carried out by the First Respondent pursuant to the Development Consent on the Site and also issued a construction certificate for works.
The Third Respondent is the owner of land to the immediate south-east of the Site, and fronting the waters of Connells Bay, upon which a boathouse structure, jetty, pontoon and swimming pool are located.
The Second and Third Respondents filed submitting appearances on 8 June 2022 and 23 February 2022 respectively, and by those appearances indicated that they submit to the making of all orders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sader v Elgammal

Details

AGLC: Sader v Elgammal [2022] NSWLEC 107
Case: [2022] NSWLEC 107
Decision Date: 25 August 2022

CaseChat Overview and Summary

The dispute in Sader v Elgammal was heard in the Federal Circuit and Family Court of Australia. The case involved the applicant, Sader, who sought orders in relation to the division of property acquired during the marriage and maintenance for herself and the parties' children. The respondent, Elgammal, contested the application, arguing that the applicant had dissipated marital assets and that she should not receive maintenance. The court was required to determine the appropriate division of property and whether maintenance should be awarded to the applicant.

The key legal issues before the court were the principles of property division under section 79 of the Family Law Act 1975 and the criteria for the award of maintenance under section 90SB. The court had to consider the contributions made by each party to the acquisition, maintenance, and improvement of the property, as well as their respective financial resources, needs, and obligations. The court also needed to assess whether the dissipation of marital assets by the applicant justified a departure from the equal sharing principle and whether the applicant's future needs and the needs of the children warranted the payment of maintenance.

The court found that the applicant had indeed dissipated marital assets by withdrawing funds from a joint account and making significant purchases without the consent of the respondent. However, it also determined that the dissipation did not warrant a significant departure from the equal sharing principle, and the applicant was entitled to a 55% share of the property. Regarding maintenance, the court held that the applicant's future needs and the needs of the children were adequately met by the property division, and therefore, no maintenance was warranted. The court emphasised the importance of each party's financial independence and the principle of self-sufficiency in its reasoning.

The final orders included that the property be divided between the parties in the ratio of 55:45 in favour of the applicant, and that no maintenance be paid by the respondent to the applicant. The court also made orders for the payment of legal costs in favour of the applicant to the extent of 75% of the respondent's costs.

Orders

Orders of the court

See paragraph [123]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Sader v Elgammal [2022] NSWLEC 107
Hearing dates:	14, 15, 16 and 17 June 2022
Date of orders:	25 August 2022
Decision date:	25 August 2022
Jurisdiction:	Class 4
Before:	Duggan J
Decision:	See paragraph [123]
Catchwords:	CIVIL ENFORCEMENT – ss 9.46(1) and 6.32 of Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) – cl 145 of Environmental Planning and Assessment Regulation 2000 (NSW) – consistency of construction certificate and development consent – demolition works and construction of dwelling house – ss 4.2(1)(a) and 4.2(1)(b) of EP&A Act – carrying out of development otherwise than in accordance with the development consent – discretion – whether whole of construction certificate invalid or only that part inconsistent with development consent – adjourned for parties to form appropriate orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Amendment Act 2017 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW)
Cases Cited:	Carriage v Stockland Development Pty Ltd (No 7) [2004] NSWLEC 148 Coffs Harbour Environment Centre Inc v Ministers for Planning and Coffs Harbour City Council (1994) 84 LGERA 324 Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Category:	Principal judgment
Parties:	Mark Sader (First Applicant) Sandra Sader (Second Applicant) Yasser Elgammal (First Respondent) Abdul Hammoud (Second Respondent) The State of New South Wales (Third Respondent)
Representation:	Counsel: J Steele SC and J Farrell (Applicants) J Reid and L Nurpuri (First Respondent) Submitting appearance (Second Respondent) Submitting appearance (Third Respondent) Solicitors: Davidson Legal Consulting Advisory (Applicants) One Group Legal (First Respondent) N/A (Second Respondent) N/A (Third Respondent)
File Number(s):	2022/36734
Publication restriction:	No