Parramatta City Council v Zreik

The actions of Mr Deeb after 3 May 2011 17The development application lodged by Mr Deeb with the Council on 19 April 2011 was refused on 28 June 2011. Notice of that determination was forwarded to him on 29 June. His building certificate application was refused on 2 August and notice of that determination forwarded to him on 3 August 2011. 18An appeal to this Court from the Council's refusal of the development application was not filed until 12 December 2011. An appeal from the refusal of the building certificate was not filed with the Court until 27 February 2012. 19Both appeals were heard together by Commissioner Morris on 19 and 20 March 2012. Her judgment was delivered on 27 April (Deeb v Parramatta City Council [2012] NSWLEC 1104). Both appeals were dismissed. 20Throughout 2011 the 14 dwellings located on the Site were leased to tenants under residential tenancy agreements. Four of those involved periodic tenancies under agreements entered into with Ms Zreik and in respect of which the fixed terms had expired. However, the remaining 10 dwellings were occupied pursuant to tenancy agreements entered into with Mr Deeb subsequent to 3 May 2011 and as recently as March 2012. Each of those new tenancy agreements was entered into for a term of 12 months. 21Following dismissal of his appeals to the Court, Mr Deeb requested the managing agent of the Site to give notice to tenants requiring that each of the dwellings occupied be vacated. In response to this request, the agent provided only "verbal notice" to tenants of an intention to require vacation. However, on 24 May written notice of termination was given to tenants requiring that the premises be vacated by 21 August 2012. The reason for termination of each agreement was said to be "end of periodic agreement" [sic]. Subsequently, further notices were served on each tenant requiring that their respective dwellings be vacated by 14 August 2012. The reason stated in the latter notice was frustration of each tenancy agreement occasioned by the orders made by the Court on 3 May 2011. The latter notices are said to have been served on 13 June 2012. 22On 13 June Mr Deeb also lodged a further development application with the Council relating to the Site. This development application is said to "include strategies for minimising or resolving the issues identified by Commissioner Morris." 23Mr Deeb explained in evidence the reason why a period of almost six months had elapsed between the date of the Council's refusal of his 2011 development application and the date of filing of his appeal to this Court pursuant to s 97 of the EPA Act. Although his gross rent receipts from the Site were in excess of $6,000 per week, he said that he had insufficient funds to finance the conduct of an appeal. It was not until November last that his bank had agreed to advance funds enabling him to finance the appeal. 24When asked to explain why he had entered into residential leases for terms of 12 months after the making of orders on 3 May last, Mr Deeb said advice given to him was that he was likely to succeed with his appeal. As a consequence there was no point in carrying out work to buildings on the Site in order to have them comply with the 2006 consent. For the same reason he did not see the necessity to have any of the dwellings vacated, against the possibility that the order restraining use took effect from May 2012. Indeed, he stated in cross-examination that he had never entertained the idea of undertaking work in order to comply with the requirements of the 2006 consent nor had he contemplated removing the top floor from either of the two residential flat buildings constructed on the Site.

Power to make the order sought 25Mr M Staunton, who appeared for Mr Deeb, submitted that the power to vary Order 2 made on 3 May 2011 is found in Pt 36 r 36.16 of the Uniform Civil Procedure Rules 2005 (UCPR). Subrule (3) of that rule provides: "(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief." 26Although the submission was not fully developed, I understand Mr Staunton's argument to be that each of Orders 1 and 2 of the orders made on 3 May 2011 must be considered separately for the purpose of applying the rule. Order 1 is the order that determines the Council's claim for relief. It is that order which engages the exception stated in paragraph (a) of subrule (3). 27However, Order 2 is in a different category. It neither determines any claim for relief nor does it determine any question arising on any claim for relief. As a consequence, the power to vary Order 2 is enlivened by the opening provisions of subrule (3), neither of the exceptions to that rule being engaged in the present case. 28Mr A Galasso SC, who appeared for the Council, submitted that subrule (3) of UCPR r 36.16 did not provide a source of power to vary Order 2. He submitted, in effect, that the orders made on 3 May 2011 were to be considered as a whole, with the consequence that Order 2 was "embedded" in Order 1. Expressed differently, Orders 1 and 2 have the consequence that the claim for relief sought by the Council was finally determined upon the grant of an injunction restraining user of the Site on terms that suspended the restraint for a period of 12 months. So understood, the orders fell within the exception expressed in paragraph (a) of the subrule, with the consequence that the power to vary those orders, or any one of them, was not engaged. There being no other power identified to disturb the orders made on 3 May 2011, Mr Deeb's notice of motion could not succeed. 29In support of his submission, Mr Galasso relied upon the decision of Lloyd J in Pittwater Council v Brown Bros Waste Contractors Pty Ltd [2009] NSWLEC 50. The facts in that case were, in many respects, similar to those in the present case. An order had been made, by consent, restraining the use of premises by the respondent. A further order, also made by consent, suspended the operation of that restraint until a nominated date. Sometime after that date had passed, a notice of motion was filed by the respondent, seeking to vary the order that had suspended the operation of the injunction. The respondent sought to extend the suspension until a later date. 30The respondent in that case relied upon the provisions of subrule (3) of Pt 36 r 36.16 of the UCPR as founding the power of the Court to grant the extension of time sought. It also relied upon Pt 1 r 1.12 of the UCPR as well as Pt 6 r 6.3 of the Land and Environment Court Rules 2007 (LECR). The latter rule was, at least for present purposes, to the same effect as r 1.12 of the UCPR. Part 6, r 6.3 of the LECR relevantly provided: "6.3 Extension and abridgment of time (cf UCPR rule 1.12) (1) The Court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the Court. (2) The Court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires." (Part 6, r 6.3 of the LECR considered by his Honour is in identical terms to Pt 7, r 7.3 of the LECR as presently amended.) 31Lloyd J did not accept that these rules invoked the power upon which the respondent relied. He said (at [25] - [26]): "25. In my opinion, however, none of these rules enable the court to vary the orders made on 9 August 2007. Apart from accidental slip or fraud, the power of the court under the rules to extend or abridge any time fixed by an order of the court, or to set aside or vary any judgment or order, can only apply to interlocutory, conditional or procedural orders and not to any final orders. This is because s 56 of the Land and Environment Court Act states that, except in the case of an appeal, 'a decision of the court shall be final and conclusive'. A 'decision', in my opinion, means a final judgment or order. A rule of the court cannot be used to alter the final decision or to vary its terms - there must be finality in litigation to ensure public confidence in the administration of justice. 26. Moreover, s 56 is not expressed to be subject to the rules. Subordinate legislation cannot override the provisions of an Act: ... ". (original emphasis) 32His Honour's determination does, with respect, provide strong support for the Council's submission. However, there is one aspect of his Honour's observations in [25] that, in the context of the present case, requires further consideration. In that paragraph his Honour identified the possibility of the rule applying to a "conditional" order. Although it is apparent that the orders made in the case before him were not regarded as "conditional" orders, his Honour did refer at [27] to cases in which variation of orders had been allowed by applying the equivalent of Pt 1, r 1.12 of the UCPR and Pt 6, r 6.3 (now Pt 7, r 7.3) of the LECR. The decision of the High Court in FAI General Insurance Company Ltd v Southern Cross Exploration N.L. [1988] HCA 13; (1988) 165 CLR 268 and of the Court of Appeal in Paino v Hofbauer (1988) 13 NSWLR 193 were cited in this context. 33Southern Cross Exploration concerned a self-executing order for judgment. The order at first instance was that the proceedings "be and stand dismissed" unless certain particulars and security for costs were provided to the defendant by a nominated date. The requisite particulars and security were not provided in accordance with the order. The trial judge determined that as the proceedings had been terminated by operation of the self-executing order, there was no power to extend time for compliance. An appeal from that decision was allowed by the Court of Appeal and its decision upheld by the High Court. Their respective decisions involved consideration of the interrelationship between rules equivalent to r 36.16 of the UCPR and r 7.3 of the LECR. 34While it was observed that the rule equivalent to subrule (3) of r 36.16 contained an exception to the power of variation where an order had been made dismissing the proceedings, the equivalent of the present subrule (4) of the same rule had to be given work to do. That subrule provides: "(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order." The "other power" was identified in the equivalent of LECR r 7.3(1) whereby the Court was empowered to extend any time fixed by an order of the Court. It was the application of the latter rule which the High Court determined in Southern Cross Exploration founded the power to vary the order being considered in that case. In so concluding, the Court determined that the principle of finality of litigation by the pronouncement of orders that conclude proceedings did not impede the operation of the rule. 35The decision of the Court in Southern Cross Exploration was unanimous. In the course of her judgment, Gaudron J said (at 289 to 290): "Although it has been common to speak of a conditional order for dismissal as self-executing or of a proceeding upon which such an order has operated as 'dead', that seems to me to obscure the fact that a conditional order, of its nature, necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time. Where such an issue remains to be determined in relation to a proceeding it cannot be said that the court is functus officio. That being so, there seems to me no relevant distinction between a proceeding in which a conditional order for dismissal has been entered and a proceeding in which an order has been made but not entered, notwithstanding the decisions in Goodwin and Bailey." 36The reasoning of the High Court in Southern Cross Exploration was followed and applied by the Court of Appeal in Paino. In the latter case the Court was concerned with an application to vary orders made by consent in which execution of judgment had been stayed upon condition that a nominated sum be paid by instalments in amounts and upon dates specified in the orders. The variation of orders sought by the judgment debtor was an extension of time in which to make nominated instalments. 37The judgment creditor submitted that the Court lacked power to vary the orders that had been made. The Court rejected that submission, essentially on the basis that the requisite power was provided by the equivalent of the present Pt 7, r 7.3 of the LECR. The leading judgment was delivered by McHugh JA (Samuels and Clark JJA agreeing) who said (at 197): "The principle inherent in the decision in Southern Cross Exploration is that the Court has power to extend or abridge any time mentioned in an order of the Court whether it is the subject of an obligation or not and whether or not the time has expired." 38Are the orders in the present case "conditional" in the sense discussed both by Lloyd J and in the other cases to which I have referred? In my opinion the orders are of that kind. 39I have earlier determined, consistently with the Council's submission, that the orders made on 3 March 2011 should be read as a whole. When so doing, their conditional character is made apparent by Order 3. That order provides for a "self-executing" vacation of the restraint imposed by Order 1 upon Order 2 being "satisfied", that is upon either rendering the existing development compliant with the 2006 consent or by obtaining a new development consent for residential use and occupation of the premises in some modified form. To adapt the observations of Gaudron J in Southern Cross Exploration, the interrelation of these three orders seems to me to create the potential for the exercise of a further judicial function requiring determination as to whether the pre-condition for vacating Order 1 has been met. When determining that question, the terms of Order 3 would require consideration of the time within which the requisite works or consents had been undertaken or obtained. 40For these reasons, I am satisfied that there is power to exercise the discretion sought to be invoked by Mr Deeb's notice of motion. That power is available under Pt 7, r 7.3 of the LECR. In so deciding, I distinguish the decision of Lloyd J in Pittwater Council v Brown Bros Waste Contractors Pty Ltd. In that case there does not seem to have been the equivalent of Order 3 which I consider to be essential in identifying the orders made on 3 May 2011 as "conditional", thus enlivening the power that I have identified. 41Having concluded that I have the requisite power, it is then necessary to determine whether the power should be exercised to allow the variation of Order 2 sought by Mr Deeb. It is to that matter that I now turn.

Discretion 42The breaches of the EPA Act that founded the orders made in May 2011 are significant. Although Mr Deeb did not cause the Site to be developed in a manner that involved substantial divergence from the 2006 development consent, he has taken advantage of its form and use, knowing that it is not sanctioned. The advantage that he has received is manifest in two ways. 43First, he has had the benefit of income from 14 separate dwellings rather than 10 authorised by the 2006 consent. Moreover, the buildings, as constructed, accommodate a higher level of occupancy than would have been the case under that consent. This potential for higher occupancy arose because the number of bedrooms constructed exceeded the number of bedrooms authorised by the consent. This additional occupancy in turn had potential to increase the rental income form the Site over that which could have been anticipated from the development as approved. 44Second, Mr Deeb revealed in cross-examination that he was aware of valuations obtained by his bank for the purpose of funding his acquisition of the Site in September 2010. Those valuations indicated the value of the Site, as developed, to be $3M, increasing to $4M if strata subdivision approval was obtained. The purchase price paid by Mr Deeb was $2.075M. Thus, he stood to make a significant capital gain from his acquisition. No doubt the price paid reflected his knowledge, at the time of acquisition, that there were "issues" which the Council had with the manner in which the Site had been developed. 45The terms of Order 1 made on 3 May 2011 required that the use of the Site cease. Given that the premises were then fully tenanted, it must be assumed that the suspension of the order for a period of 12 months provided sufficient time in which to secure the termination of all tenancies. There is no evidence which suggests to the contrary. 46Moreover, the terms of Order 2 suggest that the 12 month suspension of Order 1 was sought and agreed in order to accommodate a more time consuming purpose. That purpose was either to afford to Mr Deeb the opportunity to obtain a further development consent, allowing retention of much, if not all, of the built form, or to carry out work to bring the buildings into conformity with the 2006 consent. 47As the evidence of Mr Deeb revealed, the latter alternative was not one that he contemplated during the 12 month period between May 2011 and May 2012. His whole focus was upon obtaining a further development consent to enable him to use the present buildings either in their present form or in a form involving minimal modification. So much is apparent from the pursuit of the development application and building certificate application lodged with the Council in April 2011. 48While Mr Deeb may have been single minded in seeking to obtain and implement a further development consent, thereby avoiding the need to terminate the existing tenancies, his endeavours to achieve that end in a timely manner suggest that his mind was closed to the time limit within which he was required to achieve the desired result. Why there was a delay of almost six months between the Council's refusal of his development application and the filing of an appeal to this Court consequent upon that refused is not adequately explained. 49As I have earlier recounted, Mr Deeb said that the delay in filing his appeal was due to a lack of funds to engage consultants and lawyers to act for him. Loan funds from a bank enabling him to proceed were not provided until November 2011. However, when asked in cross-examination whether he now had the funds to pursue and implement the further development application lodged with the Council on 13 June 2012, he replied that he had finance available from his family. It was not suggested by Mr Deeb that such finance was not available to him during 2011 which, if utilised, would have enabled him to file his appeal to the Court much earlier than December of that year. 50Another consequence of Mr Deeb's focus upon obtaining a further development consent for the Site was to overlook or ignore the restraint imposed by Order 1 requiring the cessation of Site user. He failed to address the prospect that a new development consent and the undertaking of any work that it authorised might not be in place and completed by May 2012. The failure to address this prospect, with the consequence that he would be in breach of Order 1, is exemplified by the actions of Mr Deeb in entering into residential tenancy agreements for 12 month terms during the latter months of 2011 and the early months of 2012. Clearly, he had no insight, or chose to have no insight, into the significance of the orders to which, through his solicitor, he had consented. There was no suggestion by him that he did not understand the obligations imposed by the orders or that his then solicitor had not acted in accordance with his instructions. 51When ultimately he confronted the consequences of dismissal of his development appeal in April 2012, his action in belatedly seeking to have the tenancies on the Site terminated were not taken in a manner likely to achieve an expeditious result. Initially, only an "oral notice" was given to tenants. It was not until 13 June 2012 that notices were served on tenants, reducing the period of notice, on the basis that it was necessary to comply with the orders made by this Court on 3 May 2011. 52In support of the present motion, Mr Staunton submitted that, given the steps taken by or on behalf of Mr Deeb to terminate the residential tenancies on the Site, it was reasonable to anticipate that it would be vacant within three months. As a result, use of the Site would cease conformably with Order 1. In the meantime, so it was submitted, no environmental harm was occasioned by continued occupation of the buildings, the 2006 consent contemplating that the Site would be used for medium density residential development. Further, the buildings were "safe" both structurally and in context with fire safety. 53As the current state of the buildings erected on the Site (as distinct from their occupation) is not directly affected by Order 1, I do not regard the claim that there is no environmental harm being occasioned by continued occupation as being significant to the exercise of discretion. However, I cannot ignore the observations of Commissioner Morris in her judgment of 27 April last in which she described at [85] the environmental impact of the existing built form of development on the Site. Her description of the negative impacts of the development, as it presently stands, is inconsistent with an assertion that there is presently an absence of environmental harm. Adverse impacts upon the existing heritage dwelling and the poor appearance of the development from the street are but two of the negative impacts which she described. 54Mr Staunton further submitted that Mr Deeb had attempted to meet the requirements of Order 2 by making the development application that he did in 2011 and subsequently pursuing an appeal to the Court from the Council's refusal of that application. He argued that when it was apparent that the time limitation imposed by Order 2 would not be met, Mr Deeb had acted responsibly by filing his present notice of motion in an endeavour to avoid being in contempt of the Court's orders. 55Mr Staunton also relied upon a letter from the Council's solicitors dated 1 May 2012, addressed to Mr Deeb's solicitors, in which it is indicated that the Council was willing to consent to a three month extension for compliance with Order 1. However, that offer was expressed to be conditional upon Mr Deeb "providing a timetable of works to be undertaken to bring the building [sic] into compliance with the Order." No schedule of works sought by that letter has been forthcoming. Indeed, it is apparent from the evidence given before me that Mr Deeb wishes to pursue the development application lodged with the Council earlier this month before contemplating any works to bring the building into compliance with the 2006 consent. 56Finally, in support of his motion Mr Deeb offers an undertaking that he will take all necessary steps to have the buildings on the Site vacated within three months. 57I am not persuaded that my discretion should be exercised in favour of further extending the suspension of Order 1. Mr Deeb's actions between May 2011 and the present time do not sufficiently demonstrate to me that if the suspension of Order 1 is extended for a further three months, he will act in a manner that will achieve timely compliance with that Order. Based on the evidence to which I have referred, the granting of a further extension is more likely to instil a false sense of confidence that the need to have the Site vacated is less urgent than it ought to be, with greater focus being given by Mr Deeb to the pursuit of the new development application recently lodged with the Council. The delayed appeal following refusal of the 2011 development application; the delay in giving effective notice to tenants and the filing of the present motion one day before the suspension of Order 1 expired, all support that conclusion. 58I appreciate that by not acceding to Mr Deeb's application, I am leaving him vulnerable to proceedings for contempt. Whether such proceedings are brought is essentially a matter for the Council. However, the prospect that proceedings of that kind may be instituted seems to me to offer greater prospect that Order 1 will be observed in a timely manner than would be the case if I extended the suspension of the order for the period sought. 59In so deciding, I am mindful of the plight of tenants. However, my determination does not impinge upon the termination of their tenancies: notices to achieve that end have already been given, with the cause for giving those notices being the consequence of Mr Deeb's conduct. 60I do not overlook evidence before me that the Council will assist with the placement of "affordable housing" tenants, given that tenants falling within that description presently occupy one of the dwelling units on the Site. The evidence also reveals that the managing agent for the Site is endeavouring to assist with the placement of other tenants.

Orders 61For the reasons that I have indicated, I will make an order dismissing Mr Deeb's motion. However there is a further order that needs to be addressed. 62The notice of motion was initially listed before me on 29 May 2012. The parties then appearing by their respective legal representatives indicated their mutual understanding that the matter was listed for mention only on that day. With the consent of the parties I then ordered that Order 2 [sic] of the orders made on 3 May 2011 be stayed until further order. Other orders of a procedural nature were made at that time. 63The parties now accept that the nomination of Order 2 as being suspended was a slip, the intention being that Order 1 should be stayed pending determination of the notice of motion. As a consequence, that order (also being "Order 1" made on 29 May 2012) should be corrected to reflect the stay as being referable to Order 1 of the orders made on 3 May 2011 (cf Pt 36, r 36.17 UCPR). Having regard to the manner in which I have determined Mr Deeb's notice of motion, the corrected Order 1 made by me on 29 May 2012 should now be discharged. 64Accordingly I make the following orders: (1)The second respondent's notice of motion dated 2 May 2012 is dismissed. (2)Order 1 of orders made on 29 May 2012 is discharged. (3)The second respondent must pay the applicant's costs of the notice of motion. (4)Exhibits may be returned.

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: 22 June 2012