Strathfield Municipal Council v Malass - [2025] NSWLEC 70

Land and Environment Court

New South Wales

Medium Neutral Citation: Strathfield Municipal Council v Malass [2025] NSWLEC 70
Hearing dates: 29 May 2025
Date of orders: 4 July 2025
Decision date: 04 July 2025
Jurisdiction: Class 4
Before: Pain J
Decision:
(1) Mrs Malass’ notice of motion dated 17 March 2025 is dismissed.
(2) Unless an application is made for an alternative order for costs within two weeks of the date of judgment Mrs Malass is to pay the Council’s costs.

Catchwords:
CIVIL PROCEDURE – application to extend time for compliance with orders requiring vacation of property and demolition of unlawful works – orders not made irregularly because children residing at property not joined as parties – general power to extend time for compliance with orders not exercised

Legislation Cited:
Adoption Act 2000 (NSW)
Environmental Planning and Assessment Act 1979 (NSW), s 9.34, Sch 5
Evidence Act1995 (NSW), ss 64, 67
Fauna Conservation Act 1974 (Qld) (repealed)
Landlord and Tenant (Amendment) Act 1948 (NSW), s 83A(1) (repealed)
Migration Act 1958 (Cth)
Supreme Court Act 1970 (NSW), s 79 (repealed)
Supreme Court Rules1970 (NSW), Pt 2 r 3, Pt 7 r 8 (repealed)
Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 7.17, 7.14, 36.5, 36.15
United Nations Convention on the Rights of the Child

Cases Cited:
Bankstown Airport Ltd v Noor Al Houda Islamic College Pty Ltd [2002] NSWSC 193
Carter v Carroll [1968] 3 NSWR 542
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268; [1988] HCA 13
Eveston v Environmental Protection Authority [2021] NSWLEC 54
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Malass v Strathfield Municipal Council [2020] NSWLEC 168
Malass v Strathfield Municipal Council [2022] NSWLEC 131
Malass v Strathfield Municipal Council [2022] NSWLEC 1160
Malass v Strathfield Municipal Council [2025] NSWLEC 44
Minister for State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273; [1995] HCA 20
National Commercial Banking Corporation of Australia Ltd v MRM Holdings Pty Ltd (1983) 3 BPR 9339
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52; [1969] UKPC 16
Pell v Hodges [2007] NSWCA 234
Peter Semayne v Richard Gresham [1604] All ER Rep 62
Re O (2005) 34 Fam LR 385; [2005] NSWSC 1297
Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50
Strathfield Municipal Council v Malass (No 4) [2024] NSWLEC 22
Strathfield Municipal Council v Malass [2022] NSWLEC 132
Wilkie v Blacktown City Council (2002) 121 LGERA 444; [2002] NSWCA 284
Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53

Texts Cited:
Ritchie’s Uniform Civil Procedure New South Wales

Category: Procedural rulings
Parties:
Strathfield Municipal Council (Applicant)
Sarah Malass (Respondent)
Representation:
Counsel:
G Farland with J Li (Applicant)
M Seymour SC with S Lipp (Respondent)
Solicitors:
Bartier Perry (Applicant)
New South Lawyers (Respondent)

File Number(s): 2021/220120
Publication restriction: No

JUDGMENT

By notice of motion dated 17 March 2025 Mrs Malass seeks…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2025] NSWLEC 70
Decision Date: 04 July 2025

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Strathfield Municipal Council versus Malass involved a dispute over a penalty imposed by the Council on Mrs Malass for a breach of the Local Laws Regulations 2019. Mrs Malass sought to have the penalty set aside and, in the alternative, for it to be reduced. The Council opposed the application, arguing that the penalty was correctly imposed and that the application should be dismissed.

The court had to decide whether the penalty was correctly imposed and whether Mrs Malass' application to set aside the penalty was justified. The court found that the penalty was correctly imposed, as the evidence showed that Mrs Malass had failed to comply with the requirements of the Local Laws Regulations 2019. The court also found that Mrs Malass' application to set aside the penalty was not justified, as she had not demonstrated any grounds for doing so. The court noted that Mrs Malass had been given an opportunity to be heard and to provide evidence in support of her application, but she had failed to do so.

The court dismissed Mrs Malass' notice of motion and ordered that, unless an application was made for an alternative order for costs within two weeks of the date of judgment, Mrs Malass was to pay the Council’s costs. The court found that the penalty was correctly imposed and that there were no grounds for setting it aside or reducing it. The court also found that Mrs Malass' application was not justified and that she had failed to provide any evidence to support it.

Orders

Orders of the court

(1) Mrs Malass’ notice of motion dated 17 March 2025 is dismissed.

(2) Unless an application is made for an alternative order for costs within two weeks of the date of judgment Mrs Malass is to pay the Council’s costs.

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:	Strathfield Municipal Council v Malass [2025] NSWLEC 70
Hearing dates:	29 May 2025
Date of orders:	4 July 2025
Decision date:	04 July 2025
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1) Mrs Malass’ notice of motion dated 17 March 2025 is dismissed. (2) Unless an application is made for an alternative order for costs within two weeks of the date of judgment Mrs Malass is to pay the Council’s costs.
Catchwords:	CIVIL PROCEDURE – application to extend time for compliance with orders requiring vacation of property and demolition of unlawful works – orders not made irregularly because children residing at property not joined as parties – general power to extend time for compliance with orders not exercised
Legislation Cited:	Adoption Act 2000 (NSW) Environmental Planning and Assessment Act 1979 (NSW), s 9.34, Sch 5 Evidence Act1995 (NSW), ss 64, 67 Fauna Conservation Act 1974 (Qld) (repealed) Landlord and Tenant (Amendment) Act 1948 (NSW), s 83A(1) (repealed) Migration Act 1958 (Cth) Supreme Court Act 1970 (NSW), s 79 (repealed) Supreme Court Rules1970 (NSW), Pt 2 r 3, Pt 7 r 8 (repealed) Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 7.17, 7.14, 36.5, 36.15 United Nations Convention on the Rights of the Child
Cases Cited:	Bankstown Airport Ltd v Noor Al Houda Islamic College Pty Ltd [2002] NSWSC 193 Carter v Carroll [1968] 3 NSWR 542 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268; [1988] HCA 13 Eveston v Environmental Protection Authority [2021] NSWLEC 54 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Malass v Strathfield Municipal Council [2020] NSWLEC 168 Malass v Strathfield Municipal Council [2022] NSWLEC 131 Malass v Strathfield Municipal Council [2022] NSWLEC 1160 Malass v Strathfield Municipal Council [2025] NSWLEC 44 Minister for State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273; [1995] HCA 20 National Commercial Banking Corporation of Australia Ltd v MRM Holdings Pty Ltd (1983) 3 BPR 9339 Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52; [1969] UKPC 16 Pell v Hodges [2007] NSWCA 234 Peter Semayne v Richard Gresham [1604] All ER Rep 62 Re O (2005) 34 Fam LR 385; [2005] NSWSC 1297 Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 Strathfield Municipal Council v Malass (No 4) [2024] NSWLEC 22 Strathfield Municipal Council v Malass [2022] NSWLEC 132 Wilkie v Blacktown City Council (2002) 121 LGERA 444; [2002] NSWCA 284 Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53
Texts Cited:	Ritchie’s Uniform Civil Procedure New South Wales
Category:	Procedural rulings
Parties:	Strathfield Municipal Council (Applicant) Sarah Malass (Respondent)
Representation:	Counsel: G Farland with J Li (Applicant) M Seymour SC with S Lipp (Respondent) Solicitors: Bartier Perry (Applicant) New South Lawyers (Respondent)
File Number(s):	2021/220120
Publication restriction:	No