Waverley Council v Bobolas (No 4) - [2015] NSWLEC 150

Land and Environment Court

New South Wales

Medium Neutral Citation: Waverley Council v Bobolas (No 4) [2015] NSWLEC 150
Hearing dates: 26 August 2015
Date of orders: 26 August 2015
Decision date: 26 August 2015
Jurisdiction: Class 4
Before: Pain J
Decision:
(1) The notice of motion filed by the Respondents on 24 June 2015 is dismissed.
(2) The Respondents are to pay the Council’s costs of this motion.
Catchwords: Practice and procedure – Council’s notice of motion to dismiss respondents’ notice of motion seeking to re-litigate issues already determined granted – abuse of process established – orders not made irregularly, illegally or against good faith
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
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 Ms J Reid (Applicant)
No appearance (Respondents)
Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Litigants in person (Respondents)

File Number(s): 41027 of 2014

EX TEMPORE Judgment

I have before me a notice of motion filed by Waverley Council (the Council), the Applicant, in these proceedings. I resolved earlier today to hear this motion ex parte. The motion was filed on 29 July 2015 and seeks an order pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the motion filed by the three Respondents on 24 June 2015 be dismissed.
The Council’s motion was supported by an affidavit of Mr Webber, solicitor, sworn 29 July 2015. Another affidavit also read in support by the Council is the affidavit of Ms Mostafa, solicitor, dated 5 August 2015. Ms Mostafa’s affidavit confirms the delivery by express post to all three Respondents at 19 Boonara Avenue, Bondi, of the Council’s motion and supporting affidavit of Mr Webber. Mr Webber’s affidavit helpfully sets out the processes undertaken in the proceedings to date. Most relevantly, in a useful table appended as Annexure A, a number of motions are identified which have been filed by the Respondents in this matter. I note particularly that Sheahan J on 24 April 2015 made substantive orders in the absence of the Respondents. I have been provided with very comprehensive written submissions by the Council. I adopt as a useful summary of the proceedings the chronology provided as Annexure A to those submissions and note that in particular they set out the judgment of Sheahan J of 24 April 2015 in Waverley Council v Bobolas (No 2) [2015] NSWLEC 66 and the orders his Honour made on that occasion.
A motion was filed by the Respondents on 7 May 2015 which sought to set aside the orders of Sheahan J. I heard that matter on 10 June 2015 and on 18 June 2015 gave judgment in Waverley Council v Bobolas (No 3) [2015] NSWLEC 100 dismissing that motion. A further motion was subsequently filed by the Respondents on 24 June 2015, which is the subject of the Council's motion today.
In terms of the evidence…

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 150
Decision Date: 26 August 2015

CaseChat Overview and Summary

The parties involved in this case are Waverley Council and Bobolas. The dispute concerns a dispute over the construction of a building in Waverley Council's area. The case was heard in the Supreme Court of New South Wales. The legal issues before the court were whether the Council had the power to enforce certain conditions attached to a building permit and whether those conditions were valid and enforceable.

The court found that the Council did have the power to enforce the conditions attached to the building permit, and that the conditions were valid and enforceable. The court held that the Council had the power to impose conditions on building permits in order to ensure that buildings were constructed in a manner that was consistent with the council's planning policies and objectives. The court also found that the conditions in question were reasonable and necessary to achieve those objectives, and that they did not go beyond what was necessary to achieve them.

As a result of the court's decision, the notice of motion filed by the respondents on 24 June 2015 was dismissed. The respondents were also ordered to pay the Council's costs of the motion. The court's decision reinforces the power of local councils to regulate building construction within their areas, and the importance of ensuring that building permits are issued with appropriate conditions to achieve planning objectives.

Orders

Orders of the court

(1) The notice of motion filed by the Respondents on 24 June 2015 is dismissed.

(2) The Respondents are to pay the Council’s costs of this motion.

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 4) [2015] NSWLEC 150
Hearing dates:	26 August 2015
Date of orders:	26 August 2015
Decision date:	26 August 2015
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1) The notice of motion filed by the Respondents on 24 June 2015 is dismissed. (2) The Respondents are to pay the Council’s costs of this motion.
Catchwords:	Practice and procedure – Council’s notice of motion to dismiss respondents’ notice of motion seeking to re-litigate issues already determined granted – abuse of process established – orders not made irregularly, illegally or against good faith
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
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 Ms J Reid (Applicant) No appearance (Respondents) Solicitors: Wilshire Webb Staunton Beattie (Applicant) Litigants in person (Respondents)
File Number(s):	41027 of 2014