Waverley Council v Ibrahim and Anor.

[2003] NSWLEC 67

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Land and Environment Court

of New South Wales

CITATION:	Waverley Council v Ibrahim & Anor. [2003] NSWLEC 67
PARTIES:	APPLICANT: Waverley Council RESPONDENT: Ibrahim & Anor.
FILE NUMBER(S):	40200 of 2001
CORAM:	Bignold J
KEY ISSUES:	Injunctions and Declarations :- Respondents not proved to be conducting business at time of hearing-injunction refused-Respondents to pay Council's costs but limited to costs incurred up to the first day of the hearing.
LEGISLATION CITED:	Rules of Court Part 15 r 7
CASES CITED:
DATES OF HEARING:	04/07/2002
EX TEMPORE JUDGMENT DATE :	07/04/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr S Brockwell, Barrister SOLICITORS: Solicitor for Waverley Council RESPONDENTS: First Respondent N/A Second Respondent N/A SOLICITORS First Respondent N/A Second Respondent N/A

JUDGMENT:

IN THE LAND AND

Matter No. 40200 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

4 July 2002

WAVERLEY COUNCIL

Applicant

v

MOUAMMAR IBRAHIM

First Respondent

MOHAMAD IBRAHIM

Second Respondent

JUDGMENT

Bignold J:

1. This is an application for injunctive relief to enforce compliance with the conditions of development consent granted in respect of the conduct of a pizza shop business at premises known as 114 Glenayr Avenue, Bondi. The development consent was granted in November 1971, and Condition 3 imposed restrictions on trading hours so that trade must cease at 10 pm daily. The proceedings were originally brought against the first Respondent only, but on 1 February 2002 the second Respondent, who is the first Respondent’s father, was joined.

2. The proceedings were commenced on 29 October 2001 following the Council’s earlier refusal in 2001 of a modification application made pursuant to the Environmental Planning and Assessment Act, s 96 by the first Respondent to extend the trading hours, the Council having refused that application. (The first Respondent appealed to this Court in July of 2001 but the appeal was not prosecuted and came to an end when the first Respondent discontinued the proceedings in September of 2001). That is the background to the commencement of the present class 4 proceeding seeking to enforce compliance with the trading hours condition imposed upon the grant of the relevant development consent.

3. The Respondents have not appeared on the final hearing of the case which was heard initially on 27 May 2002, the Council proceeding ex parte, with the leave of the Court. On that occasion, the Council sought an adjournment of the hearing at a late stage in the course of the hearing when it appeared that there might be a gap in the proof at the Council’s case. That problem had emerged during the course of the reception of evidence, which included evidence that the first Respondent had received a transfer of a registered lease of the subject premises in July 1999.

4. The lease had been granted in 1997 for a period of three years, expiring in December 2000. However, by registered variation of lease, the lease was varied subsequent to the first Respondent becoming the lessee by virtue of the aforesaid transfer, and the variation included an option for renewal for a further period of three years.

5. I should note that that variation preceded the transfer to the first Respondent. The variation took effect in May of 1998, so that when the first Respondent became lessee by transfer in July 1999 he was the lessee of the unexpired term of the three year lease due to expire in December 2000, with an option for renewal for a further term of three years, such option having to be exercised not less than three months and not more than six months prior to the expiration of the term in December 2000. This is provided for in cl 40 of the lease as varied. The lease also contains a holding-over clause, namely cl 38, whereby at the expiration of the term, where the lessee held over, he would hold over on the basis of a lease from month to month.

6. In the evidence adduced on the initial hearing day, there appeared to be some evidentiary gap in establishing that at a time subsequent to the expiration of the initial three year term, the lease was continuing and that indeed the first Respondent remained in possession of the premises as a lessee or tenant. That was the only aspect of the evidence that appeared to be in doubt, a doubt that was perhaps intensified by reference in one of the affidavits sworn by Ms Helen Guerman, employed by the Council as a legal administration officer, when she deposed to the fact that she had written to a Solicitor who had been appearing in the Court on behalf of the first Respondent at an earlier stage in the litigation history in response to his advice in late January or early February of 2002 that the business had been sold by his client to another person and that he, the first Respondent, no longer conducted business at the premises.

7. Ms Guerman wrote to the Solicitor then acting for the first Respondent on 26 February 2002 and invited him to provide evidence of the facts that he had asserted concerning his client’s sale of the business and cessation of conducting the business at the premises. That invitation was not taken up, and that is the last that Ms Guerman has heard from the Solicitor acting for the first Respondent at that time.

8. Upon resumption of the hearing today, the Council has tendered further evidence in the form of a further affidavit of Ms Guerman and a further affidavit of Acting Inspector of Police, Peter Tubie, of the Waverley Police Station. Ms Guerman’s affidavit deposes to a number of facts, including the fact that she has not received a reply to her letter to the Solicitor for the first Respondent that I have just referred to, and enclosing up to date searches from the Australian Securities and Investment Commission and Land Title searches in respect of the subject premises known as 114 Glenayr Avenue, Bondi.

9. The historical New South Wales business extract of the Isabella La Bella Pizzeria, being the name of the business conducted at the subject premises, indicates that the business name under that name was first registered on 11 April 2001 and the person carrying on the business was Mr Mohamed Ibrahim, the second Respondent in these proceedings, but that as from 29 January 2002, the person carrying on the business at the subject premises was a Mr Ahmed Bhazi.

10. The Land Title search details of the subject premises reveal the facts that had been previously noted except that the owner of the premises had changed. I should say that the premises comprise a number of shop premises of which the subject premises is but one, and in respect of the subject premises (114 Glenayr Avenue) the details in the current Land Title search are the same, namely—(i) a notation of the original three year lease that expired on 20 December 2000; (ii) a notation of the variation of lease that I have earlier referred to granting, inter alia, the option to renew; and (iii) the transfer of the lease to the first Respondent in July 1999 that I have earlier mentioned. No other registered dealing in relation to the subject premises is included on the title search.

11. The evidence of Acting Police Inspector Peter Tubie indicates that he attended the subject premises on four separate occasions in June of 2002, that is, last month, and made observations of what was happening at the premises on each occasion that he attended. His attendances were on each occasion late at night, after the expiration of the 10 pm trading curfew. On all but one occasion when he attended, the premises were still being operated.

12. Importantly, his evidence indicates that he observed and met the persons operating the business, namely, Mr Ahmed Bhazi and his son. Mr Ahmed Bhazi informed the Acting Inspector of Police that he was in charge of the shop and that he was now the new owner. The acting Police Inspector informed Mr Bhazi on the first occasion that he attended (12 June 2002) that he was trading beyond the permitted hours and that he, the inspector, would be reporting this incident to Waverley Council. The Police Inspector records in his affidavit that Mr Ahmed Bhazi then told him that he was going to the Council tomorrow “with my Solicitor to discuss the trading hours and some difficulties I am having with acquiring a lease.”

13. When the Police Inspector returned to the premises on a subsequent occasion, namely 26 June 2002, he again spoke to Mr Ahmed Bhazi and enquired about the proposed visit to the Council by Mr Bhazi. Mr Bhazi said that he had spoken to the Council and been given a form to fill in, he took it to his Solicitor and was waiting for the landlord to sign the form, and further discussion ensued.

14. Based upon the totality of the evidence, Counsel for the Applicant Council has invited the Court to find that the first Respondent is still in occupation of the premises and is still conducting the business, the subject of the complaint as to the unlawful trading hours in the Council’s application for injunctive relief.

15. On the evidence, I am not satisfied that either of the Respondents has any continuing connection with the subject premises or with the conduct of the pizzeria business conducted therein. The evidence establishes that the premises are being conducted by Mr Ahmed Bhazi, who claims to be the owner, who is clearly in possession of the premises, although he is experiencing difficulties in acquiring a lease. Those difficulties have not been explained in the evidence, and the identity of the person from whom he is seeking to acquire the lease has not been revealed, except for the head landlord, which probably means in all of the circumstances the owner of the premises.

16. In view of that finding, there is no justification or warrant for granting any injunction against either of the Respondents in respect of the conduct of the pizzeria business at the subject premises in breach of the conditions limiting trading hours for that development.

17. The evidence establishes however that the Respondents were involved in the conduct of the business throughout 2001 and probably into the early months of 2002. Although Mr Ahmed Bhazi became the registered proprietor of the business name on 29 January 2002, in a conversation deposed to by Acting Inspector of Police, Peter Tubie, he indicated that he had taken over the business since March, which I take to be March of 2002. So that it remains a distinct possibility, and probably a probability, that up until and including February of 2002, the Respondents were involved in the conduct of the business at the subject premises.

18. The Council’s evidence, chiefly in the earlier affidavit sworn by the acting Inspector of Police, clearly indicates that throughout 2001 the premises were trading on a consistent and regular basis in excess of the permitted trading hours. The Council, during the course of argument, sought leave to amend the form of injunction claimed against the first Respondent, namely, that he be restrained by himself, his servants and agents from using the premises in breach of the trading hours limited by the condition, and these were the words of amendment sought “or suffering or permitting the premises to be so used”.

19. At this late stage in the case, and in view of the fact that the case has proceeded without any appearance on behalf of the Respondents, I did not think it was fair to grant leave to amend the application at this late stage, but I add the comment that even if the amendment were allowed, I would still be of the opinion, on the basis of the evidence and my findings on the evidence, that the first Respondent had not been shown to have been “suffering or permitting the premises to be so used in breach of the conditions of planning consent”. In other words, upon the evidence and my findings on the evidence of no continuing connection by the Respondents with the business or the premises at which the business is conducted, the words of the sought amendment would not avail the Council’s case.

20. The Council advanced as an alternative submission that even if the Court were to decline to grant the injunctive relief sought in the application, the Council would nonetheless be entitled to an order for costs, such order to be made against both Respondents. Counsel has drawn my attention to cases decided in the Court where this has been the outcome, and was drawn my attention to Pt 15 r 7 of the Rules of the Court which enable the Court to make an order against Respondents in the proceedings where the Court is of the opinion that the Respondents have satisfied or caused the claim of the applicant to be satisfied after the proceedings have commenced.

21. In the present case, as I have mentioned, the proceedings were commenced on 29 October 2001. There were a number of callovers before the Registrar, including the one in February that I mentioned when the second Respondent was joined. The joinder of the second Respondent was justified on the basis that it was he who was the registered proprietor of the registered business name, Isabella La Bella Pizza Shop, and that the Council was, as it were, responding to the advice given by the then Solicitor acting for the first Respondent that it was the father and not the son who was engaged in the business. These callovers continued until 14 April of 2002.

22. The case was originally set down for half a day, the hearing being fixed for 27 May 2002. I have earlier referred to what occurred on that occasion and the circumstances which led to the adjournment application being made and granted, and the case being completed today.

23. The Council’s application for costs against both Respondents is made, as I say, on the basis that the Council’s case clearly established when the proceedings were commenced, that the trading hours allowed for by the relevant development consent were breached, and were being breached consistently, and that unless restrained, such breach was likely to be continued. The Council’s case has also established that the Respondents (the first Respondent perhaps more particularly so) was actively engaged or connected with the conduct of the business at the subject premises, at least up until the end of February 2002 and possibly going into March.

24. The case was listed for hearing, as I say, on 16 April at a time when the identity of the ongoing conduct of the pizzeria and the identity of the operator may have been difficult to establish. Certainly the acting Police Inspector’s evidence of his observations and conversations with the current operator, Mr Bhazi, all took place as recently as last month, when perhaps for the first time the picture emerged with clarity of who was conducting the business and how it was being currently conducted.

25. In all of the circumstances, although the Council has failed to obtain the injunctive relief it seeks in the proceedings, I am of the opinion that the Council should receive an appropriate order for costs against the Respondents in respect of the proceedings. Such an order, in my view, should not include costs incurred after 27 May 2002. That is, the costs order that I propose to make is for the costs incurred by the Council in the proceedings up to and including the first day of the hearing but not the adjourned hearing date today. The basis for limiting the costs order to costs incurred up to 27 May 2002 by the Council is that by that stage it would have been possible with appropriate investigations having been put in place, for the Council to have realised that the subject premises were now in the real and active control of Mr Ahmed Bhazi, who is not shown to have any connection with either of the Respondents.

26. Accordingly, for all the foregoing reasons, I make the following orders
1. The Council’s application for injunction be dismissed.

2. That the Respondents pay the Council’s costs incurred in the proceedings up until and including the first day of hearing on 27 May 2002 .

2. The exhibits (except for Exhibit 9) may be retained on the Court papers. Exhibit 9 (being the police records) is returned.