Strathfield Municipal Council v Ghaleb

Category: Principal judgment

Parties: Strathfield Municipal Council (Applicant, respondent on the motion)
Christopher Charbel Chaleb (First respondent, applicant on the motion)
Sandres Markhani (Second respondent)

Representation: Counsel:
M Harker (Applicant, respondent on the motion)
C Collett (First respondent, applicant on the motion)
Solicitors:
Strathfield Municipal Council (Applicant, respondent on the motion)
Merc Capital (First respondent, applicant on the motion)
The second respondent filed a submitting appearance.

File Number(s): 2025/176893-003

Publication restriction: Nil

JUDGMENT

1. By notice of motion filed on 11 September 2025, Mr Christopher Charbel Chaleb, the first respondent to Class 4 judicial review proceedings brought by Strathfield Municipal Council (Council) seeks an order that:

1 The Class 4 Proceedings LEC 2025/176893 commenced by Strathfield Municipal Council are temporarily stayed until such time that Development Application No. DA 2025/112 and Building Information Certificate BIC – 43097 lodged with Strathfield Municipal Council on 13 August 2025 in relation to 14 Llandilo Avenue, Strathfield NSW 2135 are determined.

2. The notice of motion was heard before me this afternoon, 24 October 2025.

Background

3. On 11 February 2025, a complying development certificate No SWC24669/02 (the original CDC) was issued by an accredited certifier for the construction of a two storey dwelling with a basement and swimming pool at 14 Llandilo Ave, Strathfield (the site).

4. The original CDC was subsequently modified three times - on 8 April 2025 (the first modified CDC), 15 May 2025 (the second modified CDC), and 6 June 2025 (the third modified CDC) to reflect design changes and administrative corrections during the course of the project.

5. On or around 8 April 2025, construction work commenced on the site, and the two storey structure was close to completion.

6. On 8 May 2025, Council commenced Class 4 proceedings seeking declarations that the original CDC and the first modified CDC are invalid.

7. On 17 June 2025, following an unsuccessful mediation, Council issued a stop work order (the first stop work order). The terms of the order were that the First Respondent "stop all building work at 14 Llandillo Ave, Strathfield Lot 2 DP 506975 immediately".

8. The first respondent complied with the first stop work order and construction work at the site was halted, and no further construction work has been undertaken since 18 June 2025.

9. On 25 June 2025, Council issued a further stop work order. The terms of the second stop work order were the same as those of the first stop work order (that all building work be stopped), but included additional reasons for the order.

10. On 9 July 2025, Council filed a notice of motion seeking leave to rely on an amended summons.

11. On 25 July 2025, the first respondent submitted through the NSW Planning Portal a Development Application No DA 2025/112 (the DA) and Building Information Certificate BIC - 43097 (the BIC) to Council. On 13 July 2025, the fees associated fees with the DA and BIC were paid.

12. On 12 August 2025, Duggan J granted leave to Council to file and serve the amended summons. The amended summons was filed on 13 August 2025, and seeks additional orders that the second modified CDC and third modified CDC are invalid, that the first respondent be restrained from carrying out work pursuant to any of the CDCs, and that the building and construction works carried out at the site be demolished.

13. On 11 September 2025, the first respondent filed a notice of motion seeking an order that the Class 4 proceedings be temporarily stayed until such time as the DA and BIC are determined.

14. On 14 October 2025, Class 1 proceedings were commenced appealing the deemed refusal of the DA (LEC proceeding no 2025/394547) and the deemed refusal of the BIC (LEC proceeding no 2025/394557).

The Class 1 proceedings in relation to the DA and the BIC

15. The DA to which the Class 1 proceedings relate seeks development consent for the use of the building as a residential dwelling and proposed future works to the site.

16. The BIC the subject of the Class 1 proceedings seeks consent for the works which have been carried out on the site, comprising the basement, ground and first floors.

17. In his affidavit dated 11 September 2025, Mr Mark Hanna deposes that the DA and BIC seek to address the alleged issues raised with the CDCs pleaded in the amended summons.

18. Both sets of Class 1 proceedings are listed for first directions on 11 November 2025.

Law regarding stay of proceedings

19. Section 67 of the Civil Procedure Act 2005 (NSW) (CPA) provides a broad power to stay proceedings: "subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day."

20. This power to stay proceedings is to be read in the context of the guiding principles for case management in ss 56 to 60 of the CPA. Section 56 CPA provides that the over-riding purpose of the Act and of rules of court, in their application to civil proceedings, is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" and that the court must seek to give effect to this overriding purpose when exercising any power.

21. Section 57(1) of the CPA provides:

(1) For the purpose of furthering the overriding purpose referred to in section 56(1), proceedings in any court are to be managed having regard to the following objects-

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

22. Section 58(1)(a)(ii) of the CPA provides that, in deciding whether to grant a stay, the court must seek to act in accordance with the "dictates of justice". Section 58(2) CPA sets out considerations in determining the dictates of justice, as follows:

(2) For the purpose of determining what are the dictates of justice in a particular case, the court-

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant-

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

23. In Snowy Monaro Regional Council v Cmunt (No 3) [2018] NSWLEC 175 (Snowy Monaro) at [17], Pepper J summarised the principles set out in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695 which relate to an application for a stay pending appeal. The first respondent, the applicant on the motion, accepted that this matter is not a stay pending appeal but many of the principles regarding the grant of a stay are nonetheless relevant.

24. In Snowy Monaro, Pepper J summarised the principles for granting a stay as follows:

(a) first, it is not necessary for the grant of a stay that special or exceptional circumstances be made out. It is sufficient that the applicants for the stay demonstrate a reason or an appropriate case to warrant the exercise of discretion in their favour;

(b) second, the onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties;

(c) third, the mere filing of an appeal will not, of itself, provide a reason to demonstrate an appropriate case, nor will it discharge the onus which the applicant bears;

(d) fourth, the Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it;

(e) fifth, where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay; and

(f) sixth, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them from making a preliminary assessment about whether the appellant has an arguable case.

25. In Byron Shire Council v Master Alchemy Pty Ltd [2020] NSWLEC 12, Pepper J at [41] confirmed that "each application to stay the final hearing of proceedings pending the resolution of related matters turns on its own facts and circumstances."

26. In Malass v Strathfield Municipal Council [2020] NSWLEC 168 at [42] Preston CJ of LEC cited CVA Apartments Pty Ltd v Burwood Council [2020] NSWLEC 11 and the principles in relation to the staying of orders set out by Pepper J in Snowy Monaro at [17].

Council’s submissions opposing a stay of the Class 4 judicial review proceedings

27. Council submitted that a stay should not be granted as the Class 4 proceedings should be heard and determined before the Class 1 proceedings, inter alia, because the determination of the judicial review proceedings against Council would render the Class 1 proceedings redundant. Council also referred to the ongoing adverse impact of the existing construction works. Further, Council submitted that the first respondent has not identified any reasonably arguable defence of the judicial review proceedings to warrant a stay.

A stay of the Class 4 judicial review proceedings should be granted

28. Having had the benefit of written submissions for each of the parties, and assisted by succinct oral submissions this afternoon, I have determined that a stay of the Class 4 judicial review proceedings should be granted for the following reasons.

29. If the first respondent is successful in the Class 1 proceedings, a development consent for the remaining works and use of the building and a BIC for the unauthorised works will be granted.

30. The Class 4 proceedings would be rendered otiose. Ms Collett appearing for the first respondent informed the Court that her instructions were that the CDCs as modified would be surrendered if the Class 1 proceedings were successful.

31. One of the proceedings should be stayed to avoid a multiplicity of proceedings, and in the circumstances here, I consider it more appropriate for the Class 4 proceedings to be stayed. It would not, as submitted by the first respondent (the applicant on the motion), be an "efficient use of court resources" to have both Class 4 and Class 1 proceedings run when the Class 1 proceedings have the ability to resolve the matter entirely: s 58 of the CPA. As the first respondent submitted, if the Class 4 proceedings were to run before the Class 1 proceedings and Council was successful in the Class 4 proceedings, the first respondent would seek an order that the demolition order be stayed until such time as the Class 1 proceedings are heard. This points strongly in favour of the Class 1 proceedings being heard first.

32. I accept the submission that relief sought in the Class 4 proceedings - that a substantial residential home be demolished - would have a significant impact on the first respondent and I accept that it is more appropriate for the first respondent to be given the opportunity to obtain the DA and the BIC. The site is a residential home and the first respondent an individual, not a corporation. I consider that the expense of defending Class 4 proceedings whilst also running Class 1 proceedings would be unduly onerous and not consistent with the just, quick and cheap resolution of matters and the dictates of justice in the CPA.

33. Council was unable to identify any real prejudice to it or members of the public in the matters so proceeding, the first respondent having complied with the stop work orders, and work at the site having ceased since 18 June 2025. There was no cogent evidence of any environmental harm or danger to the environment so as to require the Class 4 proceedings to be heard urgently or prior to the Class appeals. Council retains its ability to enforce planning laws through the Class 4 proceedings should the DA or BIC be refused, and the current stop work orders remain in place. Both sets of proceedings are at an early stage in their preparation.

34. Further, as submitted by the first respondent, the notice of motion seeking a stay of the Class 4 proceedings was filed in a timely manner, less than 1 month after the amended summons was filed, and commencing the Class 1 appeals shortly after deemed refusal rights arose.

Conclusion and orders

35. For these reasons, I have determined to exercise the Court's discretion to grant the stay of the Class 4 proceedings until such time as the Class 1 proceedings are determined.

36. The Court makes the following order:

37. The Class 4 proceedings LEC 2025/176893 commenced by Strathfield Municipal Council are temporarily stayed until such time that Development Application No DA 2025/112 and Building Information Certificate BIC – 43097 lodged with Strathfield Municipal Council on 13 August 2025 in relation to 14 Llandilo Avenue, Strathfield NSW 2135 are determined.

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