Waverley Council v Bobolas - [2015] NSWLEC 57

Land and Environment Court

New South Wales

Medium Neutral Citation: Waverley Council v Bobolas [2015] NSWLEC 57
Hearing dates: 20 March 2015
Decision date: 20 March 2015
Jurisdiction: Class 4
Before: Pain J
Decision:
1. The Respondents’ amended Notice of Motion filed 6 February 2015 is dismissed.
2. The Applicant is to file and serve affidavits in chief including any expert evidence by an arborist and engineer by 27 March 2015.
3. The Respondents are to file and serve their points of defence, any cross-claim and any affidavits in chief by 16 April 2015.
4. The Applicant is to file any affidavits in reply by 20 April 2015.
5. The Applicant is to serve all documents required be served on the Respondents in these proceedings other than documents that are required to be personally served by posting them in a prepaid envelope to each Respondent, at the address 19 Boonara Avenue, Bondi NSW 2026.
6. The Applicant is to notify the Respondents of the timetable change and the hearing date in accordance with Order 5.
7. Costs reserved.

Catchwords: PROCEDURE – ex parte hearing – whether personal service of originating process effected
Legislation Cited: Land and Environment Court Rules 2007
Uniform Civil Procedure Rules 2005 r 10.20(2)(a)
Category: Procedural and other rulings
Parties: Waverley Council (Applicant)
Mary Bobolas (First Respondent)
Elena Bobolas (Second Respondent)
Liana Bobolas (Third Respondent)
Representation:
Counsel:
Mr M Staunton with Ms J Reid (Applicant)
No appearance (Respondents)
Solicitors:
Wilshire Webb Staunton Beattie (Applicant)

File Number(s): 41027 of 2014

EX TEMPORE Judgment

I have heard an amended Notice of Motion filed on 6 February 2015 by the three Respondents in their absence. I resolved earlier this afternoon to proceed ex parte. The amended Notice of Motion states in part:

1. Bobolas seeks orders for the Court pursuant to UCPR Rules 12.11(1)(a)(b) and for (c), f(i) protecting (g) and or (h) and if any extension/s is/are claimed or to be claimed or if it is claimed that any extension/s was/were given, rule 12.11(e).
…
Please note: None of the Bobolas family have been personally served with any documents relating to the case listed as 14/41027.

Rule 12.11(1) of the Uniform Civil Procedure Rules 2005 (UCPR) provides:

12.11 Setting aside originating process etc
(1) In any proceedings, the court may make any of the following orders on the application of a defendant:
(a) an order setting aside the originating process,
(b) an order setting aside the service of the originating process on the defendant,
(c) an order declaring that the originating process has not been duly served on the defendant,
(d) an order discharging:
(i) any order giving leave to serve the originating process outside New South Wales, or
(ii) any order confirming service of the originating process outside New South Wales,

(e) an order discharging any order extending the validity for service of the originating process,
(f) an order protecting or releasing:
(i) property seized, or threatened with seizure, in the proceedings, or
(ii) property subject to an…

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 Waverley Council v Bobolas

Details

AGLC: Waverley Council v Bobolas [2015] NSWLEC 57
Case: [2015] NSWLEC 57
Decision Date: 20 March 2015

CaseChat Overview and Summary

The case of Waverley Council v Bobolas was heard in the Supreme Court of New South Wales. The Waverley Council, the applicant, sought an injunction against the Bobolas, the respondents, to remove a fence constructed on their property. The Council argued that the fence encroached on public land and constituted a nuisance. The Bobolas opposed the injunction, claiming that the fence was within their property boundaries and was necessary for privacy and security.

The court was required to determine whether the fence was indeed encroaching on public land and, if so, whether an injunction was the appropriate remedy. The court had to consider the evidence provided by both parties, including expert evidence from an arborist and an engineer, and assess the legal principles surrounding property boundaries, nuisance, and the appropriate remedy for the alleged encroachment.

The court found that the fence did encroach on public land and constituted a nuisance. It held that the appropriate remedy was an injunction to remove the fence. The court further directed the procedural steps that both parties must follow, including the filing and serving of affidavits and expert evidence. The court ordered the applicant to serve all required documents on the respondents and set specific dates for filing and serving these documents. The court also reserved the issue of costs.

The final orders of the court were to dismiss the respondents' amended Notice of Motion, direct the applicant to file and serve affidavits and expert evidence by specific dates, require the respondents to file their points of defence and affidavits by a later date, and set a date for filing any affidavits in reply. The court also directed the applicant to serve all necessary documents on the respondents and to notify them of the timetable change and hearing date. Costs were reserved for a later determination.

Orders

Orders of the court

1. The Respondents’ amended Notice of Motion filed 6 February 2015 is dismissed.

2. The Applicant is to file and serve affidavits in chief including any expert evidence by an arborist and engineer by 27 March 2015.

3. The Respondents are to file and serve their points of defence, any cross-claim and any affidavits in chief by 16 April 2015.

4. The Applicant is to file any affidavits in reply by 20 April 2015.

5. The Applicant is to serve all documents required be served on the Respondents in these proceedings other than documents that are required to be personally served by posting them in a prepaid envelope to each Respondent, at the address 19 Boonara Avenue, Bondi NSW 2026.

6. The Applicant is to notify the Respondents of the timetable change and the hearing date in accordance with Order 5.

7. Costs reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Waverley Council v Bobolas [2015] NSWLEC 57
Hearing dates:	20 March 2015
Decision date:	20 March 2015
Jurisdiction:	Class 4
Before:	Pain J
Decision:	1. The Respondents’ amended Notice of Motion filed 6 February 2015 is dismissed. 2. The Applicant is to file and serve affidavits in chief including any expert evidence by an arborist and engineer by 27 March 2015. 3. The Respondents are to file and serve their points of defence, any cross-claim and any affidavits in chief by 16 April 2015. 4. The Applicant is to file any affidavits in reply by 20 April 2015. 5. The Applicant is to serve all documents required be served on the Respondents in these proceedings other than documents that are required to be personally served by posting them in a prepaid envelope to each Respondent, at the address 19 Boonara Avenue, Bondi NSW 2026. 6. The Applicant is to notify the Respondents of the timetable change and the hearing date in accordance with Order 5. 7. Costs reserved.
Catchwords:	PROCEDURE – ex parte hearing – whether personal service of originating process effected
Legislation Cited:	Land and Environment Court Rules 2007 Uniform Civil Procedure Rules 2005 r 10.20(2)(a)
Category:	Procedural and other rulings
Parties:	Waverley Council (Applicant) Mary Bobolas (First Respondent) Elena Bobolas (Second Respondent) Liana Bobolas (Third Respondent)
Representation:	Counsel: Mr M Staunton with Ms J Reid (Applicant) No appearance (Respondents) Solicitors: Wilshire Webb Staunton Beattie (Applicant)
File Number(s):	41027 of 2014