Waverley Council v Bobolas - [2010] NSWLEC 165

Land and Environment Court

of New South Wales

CITATION: Waverley Council v Bobolas [2010] NSWLEC 165

PARTIES:
APPLICANT:
Waverley Council
FIRST RESPONDENT:
Mary Bobolas
SECOND RESPONDENT:
Elena Bobolas
THIRD RESPONDENT:
Liana Bobolas

FILE NUMBER(S): 40916 of 2006

CORAM: Biscoe J

KEY ISSUES: PRACTICE AND PROCEDURE :- costs application - proposed settlement of costs application as between applicant and guardian and financial manager of respondent appointed by Guardianship Tribunal - settlement requires approval of Court under s 76 Civil Procedure Act 2005 because respondent a person under legal incapacity –appeal to Supreme Court against orders appointing guardian and financial manager – appeal operates as stay of orders pursuant to s 67(5) Guardianship Act 1987 subject to any interlocutory order made by Supreme Court - costs application adjourned to see what transpires in Supreme Court

LEGISLATION CITED: Civil Procedure Act 2005, s 3
Guardianship Act 1987, s 67(5)

CASES CITED: Waverley Council v Bobolas [2010] NSWLEC 157

DATES OF HEARING: 31 August 2010

EX TEMPORE JUDGMENT DATE: 31 August 2010

LEGAL REPRESENTATIVES:
APPLICANT:
Mr M Staunton, barrister
SOLICITORS:
Staunton Beattie
RESPONDENTS:
Mr E Bobolas (in person)
SOLICITORS
n/a
Ms R Stormont
NSW Trustee and Guardian

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

31 August 2010

40916 of 2006

WAVERLEY COUNCIL v BOBOLAS & ORS

EX TEMPORE JUDGMENT

1 HIS HONOUR: The applicant council was successful in Class 4 civil enforcement proceedings against the three respondents relating to rubbish clearance from residential property owned by the first respondent on which the three respondents resided. The first respondent is the mother of the other respondents.

2 The council filed a notice of motion seeking an order that the respondents pay its costs of the proceedings.

3 Subsequently, the Guardianship Tribunal appointed the NSW Trustee and Guardian the guardian and financial manager of the first respondent. She thereby became a “person under legal incapacity” within the definition in s 3 of the Civil Procedure Act 2005. Consequently, any settlement of the costs proceedings as against her requires the approval of the Court: s 76.

4 The hearing of the applicant council’s notice of motion was adjourned to today to enable the council and the guardian to finalise a deed of settlement which would compromise this costs motion and other costs owing by the first respondent to the council relating to a number of other proceedings concerning rubbish clearance at the subject property: Waverley Council v Bobolas [2010] NSWLEC 157. A settlement would then require the approval of the Court.

5 I am informed that the council and the guardian have prepared a draft deed of settlement which, as I understand it, would provide for a compromise of the amount of the costs which the council is owed by the first respondent in the various proceedings, the sale of the subject property, the application of the proceeds of sale to discharge the settlement sum, and the termination of this costs motion against the second and third respondents. More time…

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 [2010] NSWLEC 165
Case: [2010] NSWLEC 165
Decision Date: 31 August 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Waverley Council was the applicant and Mary Bobolas, Elena Bobolas, and Liana Bobolas were the respondents. The case centered on the enforcement of rubbish clearance from a residential property owned by Mary Bobolas. The council was successful in its Class 4 civil enforcement proceedings against the respondents, and subsequently filed a notice of motion seeking an order for the respondents to pay its costs. The Guardianship Tribunal appointed the NSW Trustee and Guardian as the guardian and financial manager of Mary Bobolas, making her a person under legal incapacity. This required any settlement of the costs proceedings to be approved by the Court under s 76 of the Civil Procedure Act 2005.

The key issue before the court was whether to proceed with the proposed settlement of costs as between the applicant and the guardian and financial manager of the first respondent, or to adjourn the hearing of the applicant's notice of motion to see what transpires in the appeal to the Supreme Court. The appeal, which was filed by the respondents against the decisions of the Guardianship Tribunal, operated as a stay of the orders pursuant to s 67(5) of the Guardianship Act 1987. The court decided to stand the motion over for a period to see what transpires in the appeal to the Supreme Court, with the timing of the hearing of the appeal dictating when the matter before the court can be determined.

The court acceded to the council's proposal to stand the motion over for directions before the List Judge on 24 September 2010, with liberty to apply on three days’ notice. The court declined to make an order that the proceedings not come before Justice Pain, as there was an appeal pending by the respondents alleging apprehended bias against her Honour, but the court had no further details.

Orders