Burwood Council v Lilli

SOLICITORS: Houston Dearn O'Connor (Applicant) Project Lawyers (First and Second Respondents) Mills Oakley (Third and Fourth Respondents) File Number(s): 20/31966

EX TEMPORE Judgment

1. The Applicant Council's (the Council) amended summons seeks a declaration that a purported interim occupation certificate J190087 (IOC) dated 23 December 2019 for occupation of 56-60 Burwood Road Burwood New South Wales 2134 excluding levels 2 and 10 (the premises) is void and of no effect and some costs orders. I gave leave to the Council to file it in court and rely on it in the proceedings. There was no objection from any of the respondents to that course. In support of that application the parties have helpfully prepared a statement of agreed facts (SOAF) which was marked Ex A. The respondents do not oppose the relief sought.
2. The SOAF provides: 1. The development the subject of the proceedings relates to a 11-storey mixed use development constructed at 56-60 Burwood Road Burwood NSW 2134 consisting of a hotel, restaurant, cafe and associated uses (the Premises). The hotel contains 91 rooms. 2. CVA Apartments Pty Ltd (the third respondent) is the registered owner of the premises. Marsden Hotel Burwood Pty Ltd (the fourth respondent) is the lessee of the building and the operator of the hotel, restaurant and cafe. 3. The first respondent is a building certifier and a director of Mondan Management Ply Ltd trading as Vic Lilli and Partners (the second respondent). On 30 May 2019 Mr Lilli was engaged by Glenda Lam, an employee of Conquest Property Group, to act as the sole PCA in respect of the Premises. 4. On or about 28 November 2019 the Building Professional's Board cancelled Mr Lilli's accreditation as a certifier. Mr Lilli has appealed against that decision and on 19 December 2019 NCAT stayed that determination, subject to a number of conditions. One of the conditions reads as follows: Mr Lilli is not authorised to determine and/or issue any complying development certificates, construction certificates, compliance certificates and/or occupation certificates, nor any modified certificates of any kind. This condition includes and applies to any undetermined applications and any determined applications where the certificate has not been issued. 5. On or about Sunday 12 January 2020 Burwood Council was contacted by Senior Constable Eva Christophie of Burwood Police having inspected the Premises. 6. On Monday 13 January 2020 Council officers McClure and Ellis inspected the Premises in company with the police and observed that the Premises were occupied, and that the cafe and restaurant were in operation. 7. On 14 January 2020 Council gave emergency Development Control Orders ("DCOs") to each of the third and fourth respondents, ordering that they cease the use of the use of [sic] the premises until a valid occupation certificate was issued. 8. On 15 January 2020 Burwood Council received an email from Jeremy Azzam, Property Division Manager of the third respondent. Attached to the email was a letter and a document purporting to be interim occupation certificate J190087 issued to allow occupation of the premises excluding levels 2 and 10. The IOC purported to be signed and issued by Valerio Lilli. The IOC was dated 23 December 2019. 9. On 15 January 2015 Mr Trinh emailed Mr Lilli seeking confirmation from him as to whether an IOC had been issued and requesting a copy of the IOC. On 16 January 2020 Mr Trinh sent an email to Mr Lilli advising that Council had received a copy of the IOC and asking Mr Lilli to confirm whether the IOC had been issued and repeated the request for a copy of the IOC. 10. On 17 January 2020 Mr Trinh received an email purporting to be from Mr Lilli. There was a copy of the IOC attached to the response. 11. On 22 January 2020 Mr Trinh received a further email from Mr Lilli with the heading "DA 2019.017 - 56-60 Burwood Road, Burwood". The email advised that: I am unable to supply a copy of the interim occupation certificate as requested as I have not issued any occupation certificates for the subject development. 12. Mr Lilli requested a copy of the IOC that Council had received so that he could review it. On 23 January 2020 Mr Trinh responded to Mr Lilli's email of 22 January 2020 by attaching his email of 17 January 2020, attaching the IOC that it had received and advising that Council was confused as the two emails appeared to contradict each other. 13. On 23 January 2020 Lilli responded by way of a further email. The email said as follows: It appears that the interim occupation certificate has been fraudulently prepared and issued to council. The documents which support the certificate are documents which were referenced on a recently completed project and attached to assist in making the certificate appear to be a legitimately issued certificate. I again reiterate my assertions that this office has not issued any occupation certificate, either interim or final for the subject development. I would be more than willing to assist council in any legal proceedings should the necessity arise. 14. Mr Lilli did not write or send the email dated 17 January 2020 to Mr Trinh. He did not authorise any of his staff to write or send the email. 15. Mr Lilli did not issue IOC J190087. He did not authorise any of his staff to issue the IOC. No one in his office has the authority to sign a Part 6 certificate using Mr Lilli's name or referring to his practising certificate number. Mr Lilli has not issued an occupation certificate for the Premises. 16. The parties agree that it is appropriate for the Court to make a declaration in the following amended terms: That Interim Occupation Certificate J190087 dated 23 December 2019 for occupation of 56-60 Burwood Road Burwood NSW 2134 excluding Levels 2 and 10 is void and of no effect.