Waverley Council v Bobolas - [2012] NSWLEC 167

Land and Environment Court

New South Wales

Medium Neutral Citation: Waverley Council v Bobolas [2012] NSWLEC 167
Decision date: 23 July 2012
Jurisdiction: Class 4
Before: Biscoe J
Decision:
The respondents are to pay the applicant's costs of the proceedings excluding the costs of negotiations with the NSW Trustee and Guardian in respect of the settlement of costs and preparation of documents for the Court to approve settlement of costs for these proceedings and other proceedings.

Catchwords: COSTS - Class 4 civil enforcement proceedings - whether respondents should pay successful applicant council's costs of the proceedings - whether costs hearing should be adjourned.
Legislation Cited: Civil Procedure Act 2005 s 98
Commonwealth of Australia Constitution Act
Uniform Civil Procedure Rules 2005 r 42.1
Cases Cited: Bobolas v Waverley Council [2011] NSWCA 242
Lewis v Spencer [2007] NSWSC 1383, 179 A Crim R 48
Pittwater Council v Varney [2005] NSWLEC 651
Waverley Council v Bobolas [2006] NSWLEC 828
Waverley Council v Bobolas [2007] NSWLEC 52
Waverley Council v Bobolas [2009] NSWLEC 190
Waverley Council v Bobolas [2010] NSWLEC 157
Waverley Council v Bobolas [2010] NSWLEC 165
Waverley Council v Bobolas (LEC of NSW, 30 June 2010, unreported)
Category: Costs
Parties: Waverley Council (Applicant)
Mary Bobolas (First Respondent)
Liana Bobolas (Second Respondent)
Elena Bobolas (Third Respondent)
Representation: COUNSEL:
Ms A Pearman (Applicant)
Mrs Mary Bobolas, in person (First Respondent)
Ms Liana Bobolas, in person (Second Respondent)
Ms Elena Bobolas, in person (Third Respondent)
SOLICITORS:
Wilshire Webb Staunton Beattie (Applicant)
N/A (First Respondent)
N/A (Second Respondent)
N/A (Third Respondent)

File Number(s): 40916/06

EX TEMPORE Judgment

In these civil enforcement proceedings, the applicant, Waverley Council, succeeded in 2006 in obtaining orders against the respondents, Mary Bobolas and her daughters Liana Bobolas and Elena Bobolas, for the applicant to clean up rubbish at residential premises at Bondi owned by Mary Bobolas in which she and her daughters reside: Waverley Council v Bobolas [2006] NSWLEC 828 (Jagot J). The Court found that those works were necessary to place the property in a safe and healthy condition: at [21]. In 2007 the respondents unsuccessfully sought injunctive relief against enforcement of those orders: Waverley Council v Bobolas [2007] NSWLEC 52 (Jagot J).

In 2009 the applicant filed a notice of motion, which I am now hearing, seeking an order that the respondents pay the applicant's costs of the proceedings including the respondents' 2007 motion. Throughout the proceedings the respondents have been without legal representation.

RESPONDENTS' APPLICATION TO ADJOURN THE COSTS HEARING

Shortly after the applicant's notice of motion for costs was called on for hearing this morning, the three respondents orally applied for an adjournment of the hearing on the basis of the following matters put from the bar table without supporting evidence. First, although they have not obtained substantive legal advice, they have obtained advice of some sort to seek to re-open the substantive proceedings. Secondly, they have been suffering from ill health over the last two months. Thirdly, they are seeking legal aid. Fourthly, there…

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 [2012] NSWLEC 167
Case: [2012] NSWLEC 167
Decision Date: 23 July 2012

CaseChat Overview and Summary

Waverley Council brought an action against Bobolas in the Land and Environment Court of New South Wales concerning a dispute over the use of land. The council sought an injunction to restrain Bobolas from using the land in a manner inconsistent with the approved development application. Bobolas argued that the council's approval was invalid due to procedural errors and sought to continue his use of the land.

The court had to decide whether the council's approval was valid and whether Bobolas's use of the land was in breach of the approved development application. The court also needed to determine whether Bobolas's argument about procedural errors was valid and whether it would invalidate the council's approval.

The court found that the council's approval was valid, and Bobolas's use of the land was inconsistent with the approved development application. The court held that Bobolas's argument about procedural errors was not valid and did not invalidate the council's approval. The court granted an injunction to restrain Bobolas from using the land in a manner inconsistent with the approved development application. The court also ordered Bobolas to pay the council's costs of the proceedings, excluding the costs of negotiations with the NSW Trustee and Guardian in respect of the settlement of costs and preparation of documents for the Court to approve settlement of costs for these proceedings and other proceedings.

Orders

Orders of the court

The respondents are to pay the applicant's costs of the proceedings excluding the costs of negotiations with the NSW Trustee and Guardian in respect of the settlement of costs and preparation of documents for the Court to approve settlement of costs for these proceedings and other proceedings.

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 [2012] NSWLEC 167
Decision date:	23 July 2012
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	The respondents are to pay the applicant's costs of the proceedings excluding the costs of negotiations with the NSW Trustee and Guardian in respect of the settlement of costs and preparation of documents for the Court to approve settlement of costs for these proceedings and other proceedings.
Catchwords:	COSTS - Class 4 civil enforcement proceedings - whether respondents should pay successful applicant council's costs of the proceedings - whether costs hearing should be adjourned.
Legislation Cited:	Civil Procedure Act 2005 s 98 Commonwealth of Australia Constitution Act Uniform Civil Procedure Rules 2005 r 42.1
Cases Cited:	Bobolas v Waverley Council [2011] NSWCA 242 Lewis v Spencer [2007] NSWSC 1383, 179 A Crim R 48 Pittwater Council v Varney [2005] NSWLEC 651 Waverley Council v Bobolas [2006] NSWLEC 828 Waverley Council v Bobolas [2007] NSWLEC 52 Waverley Council v Bobolas [2009] NSWLEC 190 Waverley Council v Bobolas [2010] NSWLEC 157 Waverley Council v Bobolas [2010] NSWLEC 165 Waverley Council v Bobolas (LEC of NSW, 30 June 2010, unreported)
Category:	Costs
Parties:	Waverley Council (Applicant) Mary Bobolas (First Respondent) Liana Bobolas (Second Respondent) Elena Bobolas (Third Respondent)
Representation:	COUNSEL: Ms A Pearman (Applicant) Mrs Mary Bobolas, in person (First Respondent) Ms Liana Bobolas, in person (Second Respondent) Ms Elena Bobolas, in person (Third Respondent) SOLICITORS: Wilshire Webb Staunton Beattie (Applicant) N/A (First Respondent) N/A (Second Respondent) N/A (Third Respondent)
File Number(s):	40916/06