Waverley Council v Bobolas

[2010] NSWLEC 157

Land and Environment Court

of New South Wales

CITATION:

Waverley Council v Bobolas [2010] NSWLEC 157

PARTIES:

APPLICANT:
Waverley Council

FIRST RESPONDENT:
Mary Bobolas by her Tutor the NSW Trustee and Guardian

SECOND RESPONDENT:
Elena Bobolas

THIRD RESPONDENT:
Liana Bobolas

FILE NUMBER(S):

40916 of 2006

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- adjournment of proceedings to enable formalisation of in principle settlement between applicant and statutory financial manager of respondent under legal incapacity and to obtain Court's approval of the settlement under s 76 Civil Procedure Act 2005

LEGISLATION CITED:

Civil Procedure Act 2005, s 76

DATES OF HEARING:

18 August 2010

EX TEMPORE JUDGMENT DATE:

18 August 2010

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M Staunton, barrister
SOLICITORS
Wilshire Webb Staunton Beattie

RESPONDENTS:
Ms E Bobolas, in person
SOLICITORS
n/a

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

17 August 2010

40916 of 2006

WAVERLEY COUNCIL v BOBOLAS & ORS

EX TEMPORE JUDGMENT

1 HIS HONOUR: In these Class 4 civil enforcement proceedings the applicant, Waverley Council, has moved for an order that the three respondents pay the council’s costs of the proceedings. The notice of motion was before the Court on 30 June 2010 when it was stood over to today because of pending settlement discussions between the council and the NSW Trustee and Guardian which is the statutory financial manager of the first respondent, Mary Bobolas, who is under legal incapacity. The second and third respondents are her daughters. They all reside at the subject property at 19 Boonara Avenue, Bondi Beach. The first and second respondents but not the third respondent are present in court this morning.

2 The council and the NSW Trustee and Guardian have reached an in principle settlement agreement which resolves outstanding matters between the council and the first respondent not only in these proceedings but in a number of other proceedings in this and other courts since 2005 relating to the clearing of rubbish at the subject property. The agreement is that the council will be paid a sum of money in full satisfaction of all outstanding matters between it and the first respondent in relation to legal and other costs which the council has incurred since 2005 in those various proceedings. The various proceedings and the council’s estimate of the related legal and other costs are listed in Exhibit B. The council seeks an adjournment of its notice of motion for a reasonable period to permit the in principle agreement to be formalised in a deed and to seek the Court’s approval of the settlement.

3 It will be necessary for the council to obtain the Court’s approval of the settlement because the first respondent is under legal incapacity, s 76 of the Civil Procedure Act 2005 applies, and s 76(3) provides that except with the approval of the court there may not be any compromise or settlement of any proceedings to which that section applies as regards a claim made against a person under legal incapacity.

4 If the court approves the settlement, the council will not press for a costs order against the second and third respondents.

5 The second respondent, Ms E Bobolas, has indicated, as I understand it, an objection to the proposed settlement. That need not be addressed on this occasion which is concerned with the procedural advancement of the matter.

6 The orders of the Court are as follows:

1. The proceedings are adjourned to 31 August 2010 for the purpose of determining whether the Court should approve a settlement between the applicant council and the NSW Trustee and Guardian as financial manager of the estate of the first respondent and for the purpose of disposition of the council’s notice of motion of 22 June 2009.
2. Any affidavits to be relied on by the council or the NSW Trustee and Guardian are to be filed and served by 6.00 pm on 25 August 2010.
3. Service on the second and third respondents of any such affidavits may be effected by placing them in the mailbox at 19 Boonara Avenue, Bondi Beach, or if no mailbox is available by affixing them to the front fence.
4. Any affidavits by the second and third respondents are to be filed and served by 10 am on 30 August 2010.
5. Liberty to apply on one days’ notice.
6. The costs of today are reserved.