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 is required to settle the terms of the deed.

6 A complication has arisen because yesterday the respondents filed a summons commencing an appeal in the Supreme Court against the decisions of the Guardianship Tribunal appointing the guardian and financial manager of the first respondent. That appeal did not come to the notice of the council or the guardian until this morning. By s 67(5) of the Guardianship Act 1987, “Subject to any interlocutory order made by the Supreme Court, an appeal operates to stay the decision appealed against”.

7 Consequently, a serious question has arisen as to whether the proposed deed of settlement and the notice of motion insofar as it concerns the first respondent can proceed until the appeal to the Supreme Court is determined (or a relevant interlocutory order made).

8 In the circumstances, there is little, if any, alternative but to accede to the council’s proposal to stand the motion over for a period to see what transpires in the appeal to the Supreme Court. The timing of the hearing of the appeal in the Supreme Court may dictate when the matter before this Court can be determined. The summons commencing the appeal is returnable in the Supreme Court on 17 September 2010.

9 The council’s notice of motion is stood over for directions before the List Judge on 24 September 2010. There is liberty to apply on three days’ notice.

10 The third respondent asks for an order that these proceedings not come before Justice Pain because it is said that there is an appeal pending by the respondents alleging apprehended bias against her Honour. I have no further details. I decline to make any such order.