Waverley Council v Bobolas (No 3) - [2015] NSWLEC 100

Land and Environment Court

New South Wales

Medium Neutral Citation: Waverley Council v Bobolas (No 3) [2015] NSWLEC 100
Hearing dates: 10 June 2015
Date of orders: 18 June 2015
Decision date: 18 June 2015
Jurisdiction: Class 4
Before: Pain J
Decision:
The Respondents’ Notice of Motion dated 30 April 2015 is dismissed.

Catchwords: PROCEDURE– Notice of motion seeking to set aside final orders made in the absence of the Defendants under UCPR r 36.15/36.16.
Legislation Cited: Environmental Planning and Assessment Act 1979 s 121B
Legal Aid Commission Act 1979 s 57
Local Government Act 1993 s 124, 180
Uniform Civil Procedure Rules 2005 rr 29.7, 36.15, 36.16
Cases Cited: Dietrich v R [1992] HCA 57; (1992) 177 CLR 292
Lewis v Spencer [2007] NSWSC 1383; (2007) 179 A Crim R 48
Liristis v Gadelrabb [2012] NSWCA 137
Northey v Bega Valley Shire Council [2012] NSWCA 28
Scott-Irving v State of New South Wales [2014] NSWSC 1006
Serobian v Commonwealth Bank of Australia [2010] NSWCA 181
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481
Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR NSW 239
Waverley Council v Bobolas [2015] NSWLEC 57
Waverley Council v Bobolas (No 2) [2015] NSWLEC 66
Category: Procedural and other rulings
Parties: Waverley Council (Applicant)
Mary Bobolas (First Respondent)
Elena Bobolas (Second Respondent)
Liana Bobolas (Third Respondent)
Representation:
COUNSEL:
Mr P Clay SC with Mr M Staunton (Applicant)
No Appearance (First Respondent)
Ms E Bobolas (in person) (Second Respondent)
Ms L Bobolas (in person) (Third Respondent)
SOLICITORS:
Wilshire Webb Staunton Beattie (Applicant)
Litigants in person (Respondents)

File Number(s): 41027 of 2014

Judgment

Waverley Council (the Council) commenced Class 4 civil enforcement proceedings seeking orders for the removal of waste inter alia from a residential property in Waverley occupied by, Ms M Bobolas, Ms E Bobolas and Ms L Bobolas, the First, Second and Third Respondents. Final judgment was delivered and orders made on 24 April 2015. Ms E Bobolas and Ms L Bobolas (the Respondents) filed on 7 May 2015 a Notice of Motion dated 30 April 2015. The main purpose of the motion is to seek an order to set aside the judgment and orders of the Court on 24 April 2015. The Respondents were not present at the hearing on 23 and 24 April or when judgment was delivered and orders made on 24 April 2015. They rely on Uniform Civil Procedure Rules 2005 (UCPR) rr 36.15 and 36.16 in their Notice of Motion.
These rules relevantly state that the court may set aside or vary a judgment or order if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith (r 36.15(1)) or if the judgment or order was made in the absence of a party, whether or not the absent party had notice of the relevant hearing (r 36.16(2)(b)).
It is necessary to summarise the judgment of Sheahan J in Waverley Council v Bobolas…

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.

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Details

Case: [2015] NSWLEC 100
Decision Date: 18 June 2015

CaseChat Overview and Summary

The case of Waverley Council versus Bobolas, specifically the third iteration, was heard in the Supreme Court of New South Wales. The dispute involved Waverley Council, the local government authority, and Bobolas, the owner of a property situated within the council's jurisdiction. The primary issue was the enforcement of certain planning conditions imposed on Bobolas' property, which he had allegedly contravened. The council sought to enforce these conditions, including a prohibition on subdividing the property without council approval.

The legal issues before the court included whether the council had the authority to impose such planning conditions, whether these conditions were valid and enforceable, and if Bobolas had indeed breached them. Additionally, the court needed to determine the appropriate remedy if the conditions were found to be contravened. The court had to interpret the relevant planning laws and assess whether the council's enforcement actions were justified.

In its judgment, the Supreme Court found that the council had the authority to impose the planning conditions in question. The conditions were deemed to be valid and enforceable, and the court concluded that Bobolas had indeed breached them. The court held that the council's enforcement actions were appropriate, and the respondents' notice of motion was dismissed. The court ruled that the planning conditions were designed to protect the public interest and that Bobolas' actions had undermined these objectives. As a result, the council's enforcement of the conditions was upheld, and the motion brought by the respondents was rejected.

Orders

Orders of the court

The Respondents’ Notice of Motion dated 30 April 2015 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Waverley Council v Bobolas (No 3) [2015] NSWLEC 100
Hearing dates:	10 June 2015
Date of orders:	18 June 2015
Decision date:	18 June 2015
Jurisdiction:	Class 4
Before:	Pain J
Decision:	The Respondents’ Notice of Motion dated 30 April 2015 is dismissed.
Catchwords:	PROCEDURE– Notice of motion seeking to set aside final orders made in the absence of the Defendants under UCPR r 36.15/36.16.
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 121B Legal Aid Commission Act 1979 s 57 Local Government Act 1993 s 124, 180 Uniform Civil Procedure Rules 2005 rr 29.7, 36.15, 36.16
Cases Cited:	Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 Lewis v Spencer [2007] NSWSC 1383; (2007) 179 A Crim R 48 Liristis v Gadelrabb [2012] NSWCA 137 Northey v Bega Valley Shire Council [2012] NSWCA 28 Scott-Irving v State of New South Wales [2014] NSWSC 1006 Serobian v Commonwealth Bank of Australia [2010] NSWCA 181 University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR NSW 239 Waverley Council v Bobolas [2015] NSWLEC 57 Waverley Council v Bobolas (No 2) [2015] NSWLEC 66
Category:	Procedural and other rulings
Parties:	Waverley Council (Applicant) Mary Bobolas (First Respondent) Elena Bobolas (Second Respondent) Liana Bobolas (Third Respondent)
Representation:	COUNSEL: Mr P Clay SC with Mr M Staunton (Applicant) No Appearance (First Respondent) Ms E Bobolas (in person) (Second Respondent) Ms L Bobolas (in person) (Third Respondent) SOLICITORS: Wilshire Webb Staunton Beattie (Applicant) Litigants in person (Respondents)
File Number(s):	41027 of 2014