Blacktown City Council v The Penatrators Pty Limited

EX TEMPORE Judgment 1This is a motion by the applicant, Blacktown City Council, for, first, an order joining Riverstone Waste Pty Ltd ("Riverstone") as third respondent to the proceedings; secondly, leave to file an amended summons giving effect to the first order; thirdly, an interlocutory injunction until further order to stop Riverstone receiving or depositing any further waste material on land at Lots 23-25 of section 47 in DP 1480 located at Hamilton Street immediately north of the unformed road of Albert Street, Vineyard ("the site"); and fourthly, an order for substituted service. 2However, the Council does not press for an interlocutory injunction today because of the circumstances referred to below at [5]. 3The first respondent is The Penatrators Pty Limited ("Penatrators"). The second respondent is Michael Galainy. He is the sole director of Penatrators and Riverstone. He represented Penatrators at an interlocutory hearing on 2-4 October 2013 before Pepper J, which culminated with her Honour on 4 October making such an interlocutory injunction and an order for substituted service against Penatrators: Blacktown City Council v The Penatrators Pty Limited [2013] NSWLEC 169. Mr Galainy represents both companies before me today. 4The occasion for this motion being listed before me as the duty judge appears from the following paragraphs of Pepper J's reasons for judgment: 18 The council again sought an undertaking from either the company or Mr Galainy in exchange for its acquiescence to an adjournment of the matter. Mr Galainy refused to provide one personally, and moreover, candidly informed the Court that if the company gave one "it would not be worth the paper it was written on" because another company was responsible for the deposition and storage of waste on the site. This is elaborated upon below. ... 21 When the matter resumed on 4 October 2013, Mr Galainy appeared without legal representation. He claimed that he had had insufficient time to obtain legal representation. He also claimed that his wife had had a miscarriage the previous night. He did not produce any evidence, medical or otherwise, to verify this claim, nor did he indicate what steps, if any, he had taken to obtain legal representation. The Court therefore continued to hear the council's application for interim injunctive relief. 22 The council was granted leave to file in Court a notice of motion seeking to join Riverstone Waste Transfer Pty Ltd ("Riverstone") to the proceedings generally and as a party to the application seeking interlocutory relief. The motion was brought about by statements made by Mr Galainy on the previous day that The Penetrators Pty Limited was not the correct corporate entity to pursue in the proceedings and that Riverstone was the company responsible for the waste onsite. 23The council sought an order that the motion be made returnable instanter. Given that Mr Galainy had been given no notice whatsoever of the application and that he was unrepresented, the Court declined, as a matter of fairness to Mr Galainy, to hear and determine the motion immediately and instead set it down for final hearing before the duty judge on 9 October 2013. ... 30In relation to Mr Galainy's unsubstantiated claim that the council has proceeded against the wrong corporate entity, despite unsworn allegations from the bar table by Mr Galainy that the activities at the site are not being carried out by the company but are being undertaken by Riverstone, this is contradicted by the following evidence: (a)the presence of a Ford utility vehicle onsite registered to the company; (b)conversations between Mr Apps and a person onsite indicating that Mr Galainy was a person having control and knowledge of the site; (c)the presence of Mr Galainy onsite on 1 October 2013 and conversations between Mr Galainy and the council concerning the activities taking place on the site, wherein at no stage did Mr Galainy deny that the company was carrying out the development or assert any fact to the contrary; (d)repeated admissions by Mr Galainy of an intent to lodge a development application for the use of the site, which again contained no assertion that the development application would be lodged by, or on behalf of, an entity other than the company; and (e)the webpage for the company describes its activities as including "demolition". This is consistent with the deposition of waste material on the site by the company, and moreover, is inconsistent with Mr Galainy's description of the company as only being engaged in concreting activities. ... 5The circumstances justifying the orders made against Penatrators are set out in Pepper J's reasons for judgment, which it is unnecessary to repeat. They also justify the orders sought today against Riverstone if, as Mr Galainy has asserted, Riverstone was responsible for the deposit and storage of waste on the site. The applicant considers that it is unnecessary to press for an interlocutory injunction against Riverstone today because, first, it has been ascertained that Riverstone was incorporated on 13 September 2013 after the proceedings commenced; secondly, the applicant has no evidence that Riverstone has carried on any activity the subject of the interlocutory injunction apart from Mr Galainy's assertion before Pepper J; and, thirdly, since the orders made by Pepper J there has been no injuncted activity on the site. Lest the circumstances change, the applicant seeks to stand over the notice of motion insofar as it seeks an interlocutory injunction against Riverstone. I consider that to be reasonable. 6I have discussed with the parties a timetable for directions to progress the proceedings towards a hearing and they have agreed on the directions set out below. Mr Galainy requested, and the applicant agreed, that the respondents have five weeks to put on their affidavits after the applicant has served its affidavits. 7The orders of the Court are as follows: (1)Riverstone Waste Transfer Pty Ltd is joined as the third respondent to the proceeding. (2)Grant leave to the applicant to file an amended summons giving effect to order (1). (3)Order that the requirement for personal service of any documents on the third respondent in these proceedings is dispensed with and that service be effected instead by the applicant by: (a) sending a copy of any document by registered post to the third respondent at the address of the third respondent's registered office; and (b) sending a copy of any document electronically to the email address . (4)The costs to date of the applicant's notice of motion filed on 4 October 2013 will be costs in the cause. (5)Directions: (i)the applicant is to file and serve any further affidavits by 30 October 2013; (ii)the respondents are to file and serve their affidavits by 4 December 2013; (iii)the applicant is to file and serve any affidavits in reply by 18 December 2013; (iv)the proceedings (including the applicant's notice of motion filed on 4 October 2013) will be listed before the list judge on 20 December 2013 with a view to fixing a hearing date; (v)the listing of this matter on 18 October 2013 is vacated; (vi)liberty to apply on two days notice. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 October 2013