Strathfield Municipal Council v Malass

Cases Cited: Bankstown Airport Ltd v Noor Al Houda Islamic College Pty Ltd [2002] NSWSC 193
Carter v Carroll [1968] 3 NSWR 542
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268; [1988] HCA 13
Eveston v Environmental Protection Authority [2021] NSWLEC 54
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Malass v Strathfield Municipal Council [2020] NSWLEC 168
Malass v Strathfield Municipal Council [2022] NSWLEC 131
Malass v Strathfield Municipal Council [2022] NSWLEC 1160
Malass v Strathfield Municipal Council [2025] NSWLEC 44
Minister for State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273; [1995] HCA 20
National Commercial Banking Corporation of Australia Ltd v MRM Holdings Pty Ltd (1983) 3 BPR 9339
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52; [1969] UKPC 16
Pell v Hodges [2007] NSWCA 234
Peter Semayne v Richard Gresham [1604] All ER Rep 62
Re O (2005) 34 Fam LR 385; [2005] NSWSC 1297
Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50
Strathfield Municipal Council v Malass (No 4) [2024] NSWLEC 22
Strathfield Municipal Council v Malass [2022] NSWLEC 132
Wilkie v Blacktown City Council (2002) 121 LGERA 444; [2002] NSWCA 284
Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53

Texts Cited: Ritchie’s Uniform Civil Procedure New South Wales

Category: Procedural rulings

Parties: Strathfield Municipal Council (Applicant)
Sarah Malass (Respondent)

Representation: Counsel:
G Farland with J Li (Applicant)
M Seymour SC with S Lipp (Respondent)
Solicitors:
Bartier Perry (Applicant)
New South Lawyers (Respondent)

File Number(s): 2021/220120

Publication restriction: No

JUDGMENT

1. By notice of motion dated 17 March 2025 Mrs Malass seeks orders extending the time to comply with court orders made on 4 April 2024 (the Orders) in relation to the unlawful development of a dwelling in Boden Avenue Strathfield (the property) owned by her. The Orders were made following lengthy civil enforcement proceedings commenced by Strathfield City Council (the Council) in August 2021. Judgment in the substantive proceedings Strathfield Municipal Council v Malass (No 4) [2024] NSWLEC 22 (Malass No 4) was delivered on 19 March 2024. Mrs Malass sought an order from the Court that her husband Mr Malass act as her agent throughout the civil enforcement proceedings. Declarations of unlawful use of the property and consequential orders were made on 4 April 2024.

2. Mrs Malass has commenced a Class 1 appeal following the refusal of a development application (DA2024.1) in relation to the property which is presently pending in the Court (2024/000385895).

3. The Orders included as follows:

5. The Court orders that the Respondent, her servants, tenants, agents, and any other person, occupying the Subject Property, are to vacate within ten (10) months from the date of these orders.

6. The Court orders that the Respondent by herself, her servants, tenants or agents are to demolish any building or part of a building that has been unlawfully erected and is non-compliant with the approved plans pursuant to Development Consent number DA2017/091 issued by Council on 22 November 2017 and Construction Certificate number 2018/144 issued by Accredited Certifier XX within twelve (12) months from the date of these orders.

4. Mrs Malass seeks alternative orders to orders 5 and 6 as follows:

a. Time for compliance with order 5 of the orders made on 4 April 2024 is extended to the date two (2) months after the final determination of proceedings 2024/000385895 such that the order reads:

“The Court orders that the Respondent, her servants, tenants, agents, and any other person, occupying the Subject Property, are to vacate within ten (10) months from the date of these orders two (2) months after the final determination of proceedings 2024/000385895”**.

b. Time for compliance with order 6 of the orders made on 4 April 2024 is extended to the date four (4) months after the final determination of proceedings 2024/000385895 such that the order reads:

“The Court orders that the Respondent by herself, her servants, tenants or agents are to demolish any building or part of a building that has been unlawfully erected and is non-compliant with the approved plans pursuant to Development Consent number DA2017/091 issued by Council on 22 November 2017 and Constructions Certificate number 2018/144 issue**d by Accredited Certifie**r XX within (12) months from the date of these orders four (4) months after the final determination of proceedings 2024/000385895*.”*

5. Mrs Malass relies on rr 36.15 and alternatively rr 1.12 and 36.5 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) as the basis for seeking the amended orders for extensions of time. These rules state:

1.12 Extension and abridgment of time

(1) Subject to these rules, 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.

36.5 Time for compliance with judgments and orders

(1) If a judgment or order requires a person to do an act within a specified time, the court may, by order, require the person to do the act within another specified time.

(2) If a judgment or order requires a person—

(a) to do an act forthwith or forthwith on a specified event, or

(b) to do an act but does not specify a time within which he or she is required to do the act,

the court may, by order, require the person to do the act within a specified time.

36.15 General power to set aside judgment or order

(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. …

Evidence

6. Mrs Malass swore two affidavits on 17 March 2025 and 9 April 2025 in support of her motion. In her first affidavit Mrs Malass stated that she lives at the property with Mr Malass and three school age children. There is a mortgage on the property and they are meeting monthly loan repayments of $43,312.50 by scraping together what income they can and selling off property. Mr Malass took responsibility for organising the building of the house on the property and Mrs Malass took a passive role in the process. She understood at times they received incorrect or bad advice about the process of building the house and as a result were sanctioned by the Council for improperly constructing it.

7. Mrs Malass acknowledged and accepted the findings of the Court and said it was never her intention to breach orders of the Council or the Court. At the time orders were made on 4 April 2024 Mrs Malass was represented by Mr Malass. Mrs Malass was not aware and did not understand at that time that she should have appeared to make representations about and receive final orders. Mrs Malass became aware of the Orders in September 2024 following advice from her then solicitors. Mrs Malass is currently appealing a refusal of a development application for the property which would regularise the building on the property. She hoped that appeal would be resolved before 5 February 2025, following which the Orders could be varied, set aside or enforced depending on the outcome of the appeal.

8. Mrs Malass understands that bringing the works on the property into compliance with the existing 2017 development consent would cost an estimated $10 million. She does not have any family who can accommodate her family and possessions. There is no issue with the structural integrity of the family home.

9. Mr Malass is currently bankrupt and unemployed. Mrs Malass is unemployed. Mrs and Mr Malass remain in a precarious financial position and are selling their possessions and relying on support from family and friends. The ongoing litigation and financial situation of Mrs Malass’ family has taken a toll on her health. If the house on the property were to be demolished Mrs Malass understands she would be in breach of her mortgage and loan agreements. Mrs Malass stated that she and her family having to vacate and demolish and rebuild the house on the property would be financially ruinous and she fears for her family’s welfare.

10. In Mrs Malass’ second affidavit she stated that the court proceedings in relation to the property have caused excessive stress to her three school age children. Mrs Malass fears that their studies and futures will be greatly impacted if required to relocate in the short term. The children live nearby to friends and have social activities in the area. Two of her children may be forced to change schools if they move outside of the catchment areas which their public schools cover.

11. Mrs Malass said she remains in a difficult financial situation. Mr Malass remains bankrupt and Mrs Malass is not employed and does not have any income. Mrs Malass’ family is relying on the goodwill and generosity of friends and family to remain afloat. Mrs Malass has tried but not been able to find any suitable rental property to move into. Rents are very high and she sees large numbers of people applying for rental properties. Because Mrs Malass and her family are not making money, she has not applied to rent any property as she knows they will not be successful. She has taken advice from real estate agents and understands that the value of the property would not cover the mortgage while it is subject to a demolition order or if the house is otherwise demolished. Mrs Malass lost access to her email address to which the Orders were sent when Mr Malass’ official trustee in bankruptcy took control of his businesses. She did not see email correspondence regarding the Orders. Mrs Malass and her husband took to disregarding people who knocked on the door of her house and disregarded the delivery of mail and documents to the property. Mrs Malass apologised to the Court and the Council that this resulted in delays in making the application to extend time to respond to the Orders. A loan document relating to the property was annexed to Mrs Malass’ second affidavit.

12. Mrs Malass’ solicitor Mr Wee swore an affidavit on 9 April 2025. Mr Wee described a conversation he had with Mrs Malass’ eldest child in April 2024 regarding the effects of the ongoing proceedings on him and the family. Mrs Malass’ eldest child is soon to complete high school. He was concerned about the social and educational effects on him and his siblings if they were to move from the area.

13. This evidence is hearsay evidence and would usually be impermissible. There was no need to resolve whether the notice of motion seeking to vary orders was interlocutory (hearsay evidence permissible) or final in nature (hearsay evidence not permissible) as s 64 of the Evidence Act 1995 (NSW) provides a mechanism to rely on such evidence if notice has been given under s 67 of the Evidence Act. A notice pursuant to s 67 was provided to the Council. Mr Wee’s hearsay evidence in relation to the children can be read in this application.

14. The Council’s solicitor Ms Lewis swore a lengthy affidavit on 3 April 2025 outlining the extensive communications between Mrs Malass, her agent Mr Malass, the Council and the Court regarding the whole of the proceedings up to and including the delivery of judgment on 19 March 2024. This included the making of declarations and orders on 4 April 2024 and that correspondence related to the recovery of costs including voluminous material was sent to Mrs Malass on three occasions.

15. Mrs Malass does not dispute that all the various email and postal communications attested to by Ms Lewis were sent to her and Mr Malass as her agent, including by the Council’s solicitors and my associate in relation to the delivery of judgment and the making of final orders. It is therefore unnecessary to fully canvas all the evidence of the extensive communication that occurred from September 2020 to May 2025 attested to in Ms Lewis’ affidavits.

16. Ms Lewis swore a second affidavit on 28 May 2025. In it she described enquiries she had made regarding new applications for a building information certificate regarding the property and found that as of that date no building information certificate had been lodged with respect to the property since 2021.

Cross-examination

17. In cross-examination Mrs Malass agreed that she asked the Court to have Mr Malass appointed as her agent for the substantive proceedings in October 2023 and he acted throughout the matter on her behalf.

18. Mrs Malass agreed she did not take any steps to move out of the property when she became aware of the final orders to vacate in September 2024.

19. Mrs Malass agreed that the borrower shown on the loan document attached to her affidavit dated 9 April 2025 is SKJM Consortium Pty Ltd. She agreed she is the sole director and shareholder of that company. She agreed a company search extracted on 22 April 2025 for SKJM Consortium Pty Ltd confirmed this.

20. Mrs Malass was shown a NSW Land Title Search dated 29 May 2025 showing SKJM Consortium Pty Ltd as the owner of three properties in Bayside, Berrima and on the Central Coast. She agreed SKJM Consortium Pty Ltd owned properties in Bayside, the Central Coast and Berrima.

21. Mrs Malass was also shown a transfer of title of a property in Berrima to SKJM Consortium Pty Ltd for $6.8 million in March 2023 and a NSW Land Title Search made on 29 May 2025 showing SKJM Consortium Pty Ltd as owner of that property in Berrima with no registered mortgage on title. Mrs Malass agreed the property had been purchased for the sum of $6.8 million. When asked if she could see there was no registered mortgage shown on the Title Search Mrs Malass said that her husband attends to the technicalities of ‘everything that’s associated with the companies’ and she understood parts of it but not all of it. Mrs Malass was shown an online real estate listing of a property for sale in Berrima. She agreed that it depicted the property purchased by SKJM Consortium Pty Ltd in March 2023.

22. Mrs Malass said that she stood by her evidence that she is in a precarious financial position.

23. In re-examination Mrs Malass said it was her understanding that there were borrowings against the Berrima property.

Chronology

24. A chronology of the lengthy history of enforcement action by the Council and litigation concerning the property provided by the Council follows (with minor edits). The chronology was not disputed:

| Date | Event | | 22 November 2017 | Notice of determination (approval) of development application no. DA2017/091 issued by Council for the demolition of existing structures and construction of a new two storey dwelling with basement car parking, in ground swimming pool and front fence at the property (Original Consent). | | 30 July 2018 | Construction certificate no. 2018/144, issued by Prime Building Certifiers. | | 14 September 2020 | Development Control Order pursuant to s 9.34 and Sch 5 of the Environmental Planning and Assessment Act 1979 (EPA Act) (Stop Work Order) in relation to extensive non-compliant development works not in accordance with the plans approved under development consent DA2017/019 issued by Council on 22 November 2017. | | 9 October 2020 | Mrs Malass filed Class 1 Application commencing LEC Proceedings 2020/00291053 appealing Council’s Stop Work Order (Development Control Order Proceedings). | | 27 November 2020 | Orders made by Preston CJ in Development Control Order Proceedings (Malass v Strathfield Municipal Council [2020] NSWLEC 168). Preston CJ made orders partially staying the Stop Work Order subject to conditions. | | 11 December 2020 | Mrs Malass lodged building information certificate (BIC) application no. 2020/022 (BIC2020/022) with Council for the unauthorised or illegal works at the property pursuant to Order 2(a)(ii) of the Court orders made on 27 November 2020 in the Development Control Order Proceedings. | | 13 January 2021 | Mrs Malass lodged development application no. DA2020.239 for use of the land and additions and alterations to modify an approved dwelling including remedial works at the property. | | 5 March 2021 | Council determined to refuse DA2020.239. | | 9 March 2021 | Council determined to refuse BIC2020/022. | | 10 March 2021 | Development Control Order pursuant to s 9.34 and Sch 5 of the EPA Act (Compliance Order). | | 11 March 2021 | Mrs Malass filed Class 1 application commencing LEC Proceedings 2021/00069569 appealing Council’s refusal of DA2020.239. (First DA Proceedings) | | 11 March 2021 | Mrs Malass filed Class 1 Application commencing LEC Proceedings 2021/00069575 appealing Council’s refusal of BIC2020/022. | | 2 August 2021 | Council filed summons commencing Class 4 LEC Proceedings 2021/00220120 (Civil Enforcement Proceedings). | | 4 August 2021 | Council filed a notice of motion in the Civil Enforcement Proceedings seeking interlocutory injunction requiring Mrs Malass to immediately cease all works. | | 11 August 2021 | Pain J made orders in Civil Enforcement Proceedings, including: 1. Mrs Malass immediately cease all works at the property and for the injunction to remain until finalisation of these proceedings. 2. These proceedings are returnable before the Registrar within seven days after determination of the Class 1 Proceedings 2020/00291053, 2021/00069569 and 2021/00069575 (Consolidated Proceedings). | | 19 October 2021 | Pain J made orders in Civil Enforcement Proceedings, for Council officers to have access to the property. | | 25 October 2021 | Robson J made orders granting motion by Mrs Malass to amend her development application, the subject of the First DA Proceedings. | | 10 November 2021, 16-17 & 22 December 2021 | Hearing of the Consolidated Proceedings before Dixon SC. | | 16 December 2021 | Council filed notices of motion commencing contempt proceedings in the Class 1 and Class 4 proceedings for Mrs Malass’ failure to comply with the orders made by Pain J on 11 August 2021 and 19 October 2021 (Contempt Proceedings). | | 12 May 2022 | Judgment handed down by Dixon SC in Malass v Strathfield Municipal Council [2022] NSWLEC 1160 (Consolidated Proceedings), refusing applications for development consent, BIC and revocation of Stop Work Order. | | 2 November 2022 | Judgment handed down by Robson J in Strathfield Municipal Council v Malass [2022] NSWLEC 132. | | 2 November 2022 | Judgment handed down by Robson J in Malass v Strathfield Municipal Council [2022] NSWLEC 131. | | 9 October 2023 | Mrs Malass sought leave for Mr Malass and town planner, Mr Haskew to represent her in the Class 4 Proceedings. | | 9 October 2023 | Mr Malass appeared as agent for Mrs Malass. | | 10 October 2023 | Mr Malass and Mr Haskew appeared as agent for Mrs Malass. | | 10 October 2023 | Civil Enforcement Proceedings adjourned to allow the parties to prepare written submissions. | | 11 October 2023 | Pain J’s Associate issued correspondence to Mr Malass and Council’s solicitors to arrange a date for hearing. | | 12 October 2023 | Pain J’s Associate issued correspondence to Mrs Malass, Mr Malass, Mr Jamal and Council’s solicitors to arrange a date for hearing. | | 18 October 2023 | Pain J’s Associate issued correspondence to Mrs Malass, Mr Malass and Council’s solicitors to arrange a date for hearing. | | 19 October 2023 | Pain J’s Associate issued correspondence to Mrs Malass, Mr Malass and Council’s solicitors to arrange a date for hearing. | | 23 October 2023 | Pain J’s Associate issued correspondence to Mrs Malass, Mr Malass and Council’s solicitors providing the AVL link for the listing for judgment. | | 23 October 2023 | Mr Malass replied by email at 8.20 am stating “Tuesday 4pm please on AVL”. | | 24 October 2023 | The parties appeared before Pain J in the Class 4 Proceedings. | | 2 January 2024 | DA2024.1 was uplifted to the NSW Planning Portal with additional information provided to support that DA. Council formally accepted that a development application was lodged on 15 January 2024, as set out in Ms Lewis’ affidavit dated 1 February 2024. Mrs Malass says the DA was lodged on 11 July 2024. | | 2 January 2024 | Mr Haskew, on behalf of Mrs Malass, submitted to the Council an application for a BIC for unauthorised or illegal works on the subject land with the consent of Mrs Malass. | | 13 March 2024 | Pain J’s Associate issued correspondence to Mrs Malass, Mr Malass, and Council’s solicitors to arrange a date for the delivery of judgment. | | 15 March 2024 | Pain J’s Associate issued correspondence to Mrs Malass, Mr Malass, and Council’s solicitors to arrange a date for the delivery of judgment. | | 18 March 2024 | Mr Malass replied by email at 11:02am stating “I’d like to appear by AVL please”. | | 18 March 2024 | Pain J’s Associate issued correspondence to Mr Malass and Council’s solicitor, providing AVL link for court listing for delivery of judgment. | | 18 March 2024 | Pain J’s Associate issued correspondence to Mrs Malass, Mr Malass and Council’s solicitors, providing AVL link for observers for court listing for delivery of judgment. | | 19 March 2024 | Pain J’s Associate issued correspondence to Mrs Malass, Mr Malass, and Council’s solicitors regarding the delivery of judgment. | | 19 March 2024 | Mr Malass replied by email at 4.42 pm stating “I’ve been muted and can’t respond but yes I can hear you”. | | 19 March 2024 | The Court delivered judgment in the Class 4 Proceedings. | | 27 March 2024 | Council issued correspondence to Pain J’s Associate, Mrs Malass and Mr Malass providing its proposed order to give effect to Pain J’s decision in the Class 4 Proceedings. | | 4 April 2024 | Pain J’s Associate issued correspondence by email to Mrs Malass, Mr Malass and Council solicitors enclosing amended orders made in chambers on 4 April 2024. | | 5 June 2024 | Mrs Malass appointed Yates Law to act for her. | | 24 July 2024 | Notice of Determination – Refusal of DA2024.1 (PAN-402763) by the Local Planning Panel. | | 30 August 2024 | Mrs Malass appointed New South Legal to act for her. | | 17 October 2024 | Mrs Malass filed Class 1 Application commencing LEC Proceedings 2024/00385895 appealing Council’s refusal of DA2024.1. | | 12 December 2024 | Council filed notice of motion to dismiss the 2024 Class 1 Application as an abuse of process. Notice of motion dismissed on 9 May 2025. |

Mrs Malass’ submissions

25. No allegation of breach of natural justice is made in relation to the conduct of the proceedings giving rise to Malass No 4 and the Orders. Mrs Malass accepts that all the written communications referred to in the Council’s affidavit evidence were sent. Mrs Malass accepts she was mistaken not to take action in relation to the various issues that have arisen including following the making of the Orders. Essentially she ignored what was occurring as she was particularly stressed and overwhelmed and now realises she was mistaken in doing so.

Application of r 36.15

26. Order 5 was made irregularly because the order to vacate impacts Mr Malass and their three children in addition to Mrs Malass. As occupants of the property they should have been joined as parties affected before such orders were made and the Council should have sought to join them as necessary parties, relying on Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 (Ross). The order for vacation was not sought in the originating summons filed by the Council. Had it been Mr Malass and the three children should have been joined as parties from the outset. The order was made in the absence of those affected and is therefore irregular and should be set aside.

27. An order that something be done by a person does not bind the universe. The Court generally exercises its power against the person who is responsible. That an order is made requiring the person carrying out development to do something does not bind everyone and where others must be bound they must be joined as parties. Wilkie v Blacktown City Council (2002) 121 LGERA 444; [2002] NSWCA 284 (Wilkie*)* supports this submission.

28. The Orders fail to ensure the interests of the children are considered through representation by a tutor represented by a solicitor (unless a court orders otherwise) as provided in rr 7.14(2) and 7.17(1) of the UCPR.

29. The failure to have regard to the independent interests of children is in breach of mandatory requirements identified in Minister for State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273; [1995] HCA 20 (Teoh). Teoh established that decision-makers in the exercise of statutory discretion are not permitted to exclude considerations of the paramount interests of children.

30. The children and Mr Malass have a right of occupation of their home. A common law right exists for occupiers not to be disturbed except by an order properly and formally made.

31. In the context of an order under the EPA Act, as distinct from orders for writ of ejectment or possession, the children are entitled to be identified as parties in accordance with the test in Ross.

32. As identified by Gummow J in Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53 at [85], concepts of possession and property are difficult to squarely define and ownership may be divorced from possession. Occupation is enough to satisfy the Court that the children are in some form of possession.

33. Mr Malass as agent for Mrs Malass participated throughout the civil enforcement proceedings including in the making of final orders. Accepting that he had full knowledge of the proceedings, Mr Malass has a right to occupy by virtue of his matrimonial relationship with Mrs Malass. He should have been joined as a party given the order for vacation sought.

Application of rr 36.5/1.12

34. Alternatively, under rr 36.5 and 1.12 the Court has discretion to extend time (the Court’s power to do so was not disputed by the Council) operating within the finality of litigation.

35. Additional factors to consider for both rules being applied is that there is a pending Class 1 proceeding seeking to regularise the existing structure and its occupation. It is preferable to preserve the status quo pending any final judicial determination in the Class 1 proceedings. The proposed extensions of time for compliance with the Orders gives effect to the outcome mandated by the Orders that Mrs Malass is afforded an opportunity to obtain a new consent before she and her family must vacate the property. Mrs Malass has availed herself of that opportunity in a timely manner but it has not run its course.

36. Court judgments enabling work to be done are an important part of the planning scheme as work ordered to be done by the Court does not require development consent. The Orders form part of that planning scheme and should be responsive to the pending judgment in the Class 1 appeal.

37. Mrs Malass’ written evidence as to her financial position was unchallenged.

38. An important consideration is the best interests of the children and the stability of their home. One child is doing the HSC this year. The financial and emotional condition of the family will be affected by a change in the current status quo of remaining where they are. The present occupation does not involve any external environmental impacts.

Council’s submissions

39. The long history of the Council’s efforts to enforce the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) with a SWO issued in 2020 which was not complied with and the commencement of Class 4 proceedings resulted in the Orders. Mrs Malass and her family are living in an unlawfully constructed building, do not have an occupation certificate to do so and have done so for four years. The existence of the unauthorised works is not the status quo that should be maintained. The status quo is the order for demolition and the order to vacate to enable that to occur. No new evidence since the substantive hearing and the issues considered in making the Orders has been provided.

40. Any prejudice suffered by Mrs Malass and her family is entirely of her own making. Mrs Malass is the owner of the property. Anyone else residing at the property is permitted to be there by virtue of a license given by her. Any complaints those residents may have in relation to the impact of the Orders ought be against Mrs Malass, not the Council.

41. That a new Class 1 appeal has been lodged is not a reason to vary the Orders. The new Class 1 appeal is not new in any substantive sense from the development application refused by Dixon SC in Malass v Strathfield Municipal Council [2022] NSWLEC 1160. Mrs Malass should not be able to extend final orders by lodging repeated Class 1 applications, as the Court’s orders will otherwise be frustrated. Given that another development application seeking to regularise the property was refused in May 2022 the development application now subject to appeal (DA2024.1) was filed very late.

42. The Council continues to enjoy a private benefit at the expense of the public. Malass No 4 identified the impact of the existing dwelling on the surrounding neighbourhood and locality at [59]-[60].

43. Rule 36.15 does not apply as there is no irregularity in the final orders made. No legal basis for joinder of children has been identified. Mrs Malass is the appropriate party as the owner of the property. The children’s occupation is by virtue of their mother. They do not have a separate right of occupation; Bankstown Airport Ltd v Noor Al Houda Islamic College Pty Ltd [2002] NSWSC 193 at [64]-[70] (Young CJ in Eq) (Bankstown Airport); National Commercial Banking Corporation of Australia Ltd v MRM Holdings Pty Ltd (1983) 3 BPR 9339 at 9342 (Carruthers J) (National Commercial Banking).

44. Rule 7.17 is a rule predicated on proceedings being brought against a party under legal incapacity and does not apply in these circumstances. Ross is not authority that the joinder of children of the owner of land in proceedings against the owner of land is required.

45. There is no prejudice suffered by the children of Mrs Malass by them not being joined to the proceedings. Ross is not authority for the proposition that a party with interests in the proceedings, or whose interests are considered in the proceedings, must be joined to the proceedings; see especially [52]. Even so, it is plain the children have no legal interest in the property. They are residents due to the permission from their mother, no doubt as a part of her parental obligation; National Commercial Banking at 9342 (Carruthers J).

46. The Council does not seek orders against the children of Mrs Malass. The Council does not assert that Mrs Malass’ children are in breach of any orders. Mrs Malass and her husband have responsibility over their children. They are people in the household and they do not need to be bound by court orders and have no registered interest in the land the subject of the Orders.

47. It is not the case that the Council is now seeking to agitate matters that ought to have been the subject of full and proper consideration before the Orders were made. The relevant issues were already argued and the subject of full and proper consideration before me at the substantive hearing. The present motion is not the forum to ventilate what Mrs Malass says should have been considered before the making of the Orders. Mrs Malass has not identified any new evidence, or other circumstance to justify a variation to those orders. In any event, if Mrs Malass submits that the children should have been joined to the proceedings, and that they were denied natural justice, that is a submission that goes to whether the Orders should have been made in the first instance. That submission could only be ventilated, if at all, at the hearing or, subject to leave, by way of appeal of the decision. This motion is not a substitute for an appeal from the Orders.

48. No evidence to support the application of either rule has been identified. The assertions of Mrs Malass that demolition and rebuilding will cost $10 million is not supported by any documentation. Mrs Malass does not depose that she will be unable to afford to rent a suitable house. Her evidence is that she is meeting monthly repayments of $43,312.50.

49. A party coming to the Court seeking variation of orders would make full disclosure of those things they say are relevant for the Court’s consideration. Full disclosure has not been provided. As identified in cross-examination a company owned and controlled by Mrs Malass as the sole director and shareholder is the owner of a property purchased apparently unencumbered for $6.8 million. The loan she is meeting monthly repayments for is in the company’s name. There is a powerful Jones v Dunkel inference available against Mrs Malass; Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at 320.

50. If the argument is that Mr Malass should have been joined, that is a matter for Mr Malass and should not excuse Mrs Malass from the effect of the Orders she accepts were made.

51. Any delay in lodging a Class 1 application following development application lodgement was caused by Mrs Malass.

52. Mrs Malass’ situation is largely no different now to what it was at the time the Orders were made. At that time Mr Malass was bankrupt, Mrs Malass had three children, and SKJM Consortium Pty Ltd had purchased the property in Berrima. The only discernible difference to Mrs Malass’ situation is that her eldest child is completing the HSC this year. While that is appreciated it cannot be a reason for extension of the Orders.

53. Mrs Malass has not established any inability to comply with the Orders. An ability to comply with an order for demolition does not include consideration of a subsequent ability to rebuild a suitable home.

54. If Mrs Malass were permitted to continue to enjoy the benefit of the unauthorised works, noting that she has been for over four years already, that would effectively and substantially diminish the relevance of the planning regime. Mrs Malass admits in her first affidavit she, and her family, are residing at the property despite the order to vacate. Mrs Malass is, until the Orders are complied with, enjoying an illegitimate private benefit at the expense of the public. To extend the time for compliance only serves to enlarge that benefit, and continue the substantial adverse impacts. Mrs Malass has also not taken any steps to comply with the Orders other than “[considering] what would be involved in vacating the property and carrying out the demolition”, per Mrs Malass’ first affidavit.

Application of rr 36.5/1.12

55. Rules 36.5 and 1.12 provide a basis to extend time for compliance with the Orders but discretion to do so should not be exercised in the circumstances of this case. Further Mrs Malass has not provided the Court with an accurate and complete picture of her financial position given her evidence in cross‑examination concerning SKJM Consortium Pty Ltd and should have done so given the indulgence she seeks from the Court.

Consideration

56. As extracted in Malass No 4 at [4], the summons commencing the proceedings dated 2 August 2021 sought three declarations of carrying out work without development consent, failing to comply with a Stop Work Order (SWO) and failing to comply with a compliance order to undertake rectification work to ensure the development carried out complied with the approved plans in development consent DA2017/091 and construction certificate 2018/144. Orders sought were that Mrs Malass and her agents and contractors be restrained from carrying out work other than in accordance with the development consent and construction certificate and that the terms of the compliance order be complied with. An express order seeking demolition of any building or part of a building was not sought. To the extent that what was built did not comply with the development consent and construction certificate, demolition was necessary to comply with the orders sought. As the work on the property continued despite the SWO issued by the Council, and contrary to orders of the Court, the extent of non-compliance of the structure is now likely to be far greater than when the summons was filed in August 2021. An order seeking vacation of the property to enable demolition in addition to an order for demolition was not sought in the original summons. That the Council sought orders in those terms was raised in the course of the substantive hearing of the Class 4 proceedings as referred to in Malass No 4 at [72]-[73]. I made the Orders some days after delivery of judgment to allow the parties the opportunity to make submissions about these. No breach of natural justice in the making of the Orders is alleged.

Rule 36.15

57. Mrs Malass firstly argued the Orders were made irregularly, relying on r 36.15 because her children and Mr Malass were not joined as parties before the Orders were made. It is not submitted the Orders were made illegally or in bad faith. My understanding of Mrs Malass’ case is that r 36.15 was relied on in the first instance because if it applied the Orders can be set aside.

58. There is no definition of ‘irregular’ in the UCPR and it can cover a wide range of circumstances. None of the cases referred to in Ritchie’s Uniform Civil Procedure New South Wales (Ritchie) are similar to this matter. The cases that are identified non-exhaustively at [36.15.12] are described as being in three categories: non-compliance with court rules, the amount awarded was excessive, or lack of notice of various claims or actions to recover debt inter alia. Consistent with the principle of upholding the finality of judgments sufficient cause to set aside an order pursuant to r 36.15 must be provided; Ritchie at [36.15.18].

59. Mrs Malass’ submissions appeared to combine several issues in reliance on Ross. I consider these should be dealt with separately. Firstly, the issue arises in light of Mrs Malass’ submissions of whether the children and Mr Malass have an interest in land as occupiers of the property. This appears to be based on whether they could be said to be in possession of the property. In the context of the notice requirement for an order for possession of land under s 79 of the Supreme Court Act 1970 (NSW) (now repealed) and Pt 7 r 8 of the Supreme Court Rules 1970 (NSW) (Supreme Court Rules) (also repealed), in Bankstown Airport Young CJ in Eq considered what is meant by ‘occupier’ at [64]-[65]:

64 There is little discussion in the authorities as to who is an occupier under the Rule. The most extensive discussion is in the judgment of Carruthers J in National Commercial Banking Corporation of Australia Ltd v MRM Holdings Pty Ltd (1983) 3 BPR 9339, 9341-3. See also my decision in Kerr v Sheriff of NSW (1996) 9 BPR 16,215.

65 The general rule is that “wives, children, servants, friends and visitors of tenants or under tenants” (see Cole on Ejectment, (H Sweet, London, 1857) at p 84) are not considered occupiers. In particular, the occupation rights of employees are considered the occupation of the employer; see eg Mayhew v Suttle (1854) 4 E & B 347; 119 ER 133.

60. In National Commercial Banking at issue was whether the Supreme Court Rules required a lessee’s family member to receive a notice individually following the mortgagor seeking an order for possession of land after default in payment under a mortgage. The notice was served on the lessee of the owner in occupation who was the managing director of the defendant mortgagee company. Another resident of the property the 21 year old son of the lessee was not served with a notice. At 9342-3 Carruthers J concluded that the son was not in occupation of the land within the meaning of the relevant rule (Supreme Court Rules Pt 7 r 8), as he resided in the house as part of a family unit. He had permission to reside in the house from his father and he was a resident or inhabitant of the house (in contrast to an occupier). A family member ‘residing with’ a parent was recognised in law for example in the Landlord and Tenant (Amendment) Act 1948 (NSW) s 83A(1) (repealed). In that context ‘residing with’ a lessee family member comprehended no more than that the lessee allowed the other to share their abode as one of their household without any use and control of the premises. His Honour cited Carter v Carroll [1968] 3 NSWR 542 at 546-7. While I am considering a different statutory regime such reasoning applies by analogy suggesting that Mr Malass and the children are not occupiers.

61. The reference to Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53 at 85 (Gummow J) by Mrs Malass concerning the wide meaning of ‘property’ may be noted but the concept was being discussed in an entirely different legal context of whether the Fauna Conservation Act 1974 (Qld) (repealed) extinguished the right of a title holder to hunt crocodiles. That case does not assist in resolving the nature of the children’s interests in particular if any in this case.

62. I do not consider Mr Malass or the children have rights as occupiers of the property. The ability of Mr Malass and the children to live in the house owned by their spouse and mother respectively arises through her legal interest as the owner. They do not have a separate right to occupy or other relevant interest such as a licence to reside at the property.

63. Secondly, and separately, is whether the potential impacts on the children of moving out of their home as identified in Mr Wee’s 9 April 2025 affidavit require their joinder as parties. Mrs Malass submits this must occur because Teoh applies whereby the interests of the children are considered to be paramount in any decision affecting them. T**eoh was a decision of the High Court arising from the application of the Migration Act 1958 (Cth). Mason CJ, Deane and Toohey JJ identified through statutory construction that the United Nations Convention on the Rights of the Child (UNCROC), which had been ratified but not introduced into the domestic law of Australia, founded a legitimate expectation of the best interests of the applicant’s children being considered in the course of a decision about deportation from Australia of the applicant. Few Federal Court cases since appear to have applied this reasoning. To the very limited extent there appears to have been consideration of Teoh’s treatment of UNCROC by NSW courts I was assisted by the reasoning of Campbell JA in Re O (2005) 34 Fam LR 385; [2005] NSWSC 1297 at [75]-[77] in the context of the Adoption Act 2000 (NSW) in which he concluded that Teoh did not apply in a State court considering the change of name of an adopted child under State law. I draw a similar conclusion in relation to the exercise of discretion by me as a State judge applying planning laws of NSW that Teoh does not require the Council to have sought joinder of the children as a party before the Orders for vacation and demolition were made.

64. Thirdly, no common law right of habitation of a house exists in Australia so far as I am aware. In making that submission Mrs Malass referred to the 17th century Semayne’s Case (Peter Semayne v Richard Gresham [1604] All ER Rep 62) on the basis that supported the principle that a person in possession of property can assert that possession against the universe. That case does not support the broad statement that there is a common law right of habitation under Australian law and I would have expected far more explicit authority to be provided to establish such a principle. Further, I do not consider the presence of Mr Malass and the children in the house on the property amounts to possession of the property. I have already identified I do not consider the children and Mr Malass have a relevant interest in or right to possession of the property. They are residing there with the consent of Mrs Malass.

65. Fourthly, and also alternatively, is whether the Council should have applied to have Mr Malass and the three children joined as parties prior to asking the Court to make orders requiring vacation of the property and its partial demolition because they are affected by the Orders, relying on Ross. In Ross the Court of Appeal (Leeming JA, Meagher JA and Tobias AJA agreeing) stated (at [51]‑[55]):

The test for joinder

51 It is settled law that a person who is directly affected by the orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the plaintiff or applicant or person applying for those orders.

52 In the Superleague case (News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410) at 524-526, the Federal Court (Lockhart, von Doussa and Sackville JJ) applied the test stated by Lord Diplock delivering the advice of the Judicial Committee of the Privy Council in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 criticising the dichotomy between "legal" and "commercial" interests. His Lordship said at 56:

"A better way of expressing the test is: will [a non-party's] rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?"

53 That test has very regularly been followed. Most recently, in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [131], a unanimous High Court said:

"Walker Corporation submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct.

54 Sometimes it is said, as it was said in the present appeal, that merely giving notice to the person affected by the order is sufficient. It will be necessary to return to this in more detail below, but it should be recognised immediately that joinder, not notice, is the default position. In the Superleague case, their Honours said at 526:

"In our opinion, the notice given to the players before trial does not, and could not, extend the jurisdiction of the Court to make orders which offend the test stated in Pegang Mining. Absent an application for joinder by a defendant, or by a third party who claims to be directly affected by the proposed orders, it is for the party prosecuting the proceedings to choose who are the necessary parties to enable the Court to make the orders sought. Generally speaking, to permit [the party prosecuting the proceedings] to transfer to others who might be affected by the outcome of the proceedings the responsibility of deciding whether or not they should apply to be joined could be productive of uncertainty and inconvenience. At times, it could lead to the need to halt expensive litigation part-way through, because a third party insufficiently understood the proceedings, or, through impecuniosity or some other reason, was not adequately advised." (emphasis added)

55 In John Alexander's Clubs the last two sentences of that passage were reproduced, and endorsed by the High Court in these terms at [140]:

"News Ltd v Australian Rugby Football League Ltd was a case where players who had not been joined in the proceedings but only informed of them were not debarred from attacking the orders made. There is no doubt that Walker Corporation was aware of the first proceedings, and it informed the Court of Appeal of that fact. Walker Corporation said there was a reasonable explanation for its delay in seeking to be joined. Whether or not that is so, it had no duty to seek to be joined, and its delay does not in this case call for explanation."

66. Every case reflects its circumstances. In Ross a new owner of land the subject of orders requiring that work be done on the land was held to be a relevant party. Ownership is a well-recognised interest in land and the Court of Appeal concluded that the new owner’s interest was directly affected by the orders made in the NSW Land and Environment Court requiring work to be done as the person obliged to do the work would otherwise be trespassing if the new owner did not consent to the work.

67. I do not consider Ross and the cases cited therein requires that the Council must join all persons affected by an order in the circumstances of this case as I have concluded above that Mr Malass and the children have no rights in relation to the property. As the Council submitted they reside at the property with the permission of Mrs Malass. The extract of Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52; [1969] UKPC 16 in Ross above in [65] is apposite. To the extent that Wilkie was relied on its circumstances are quite different to this matter.

68. It follows from my finding that the children do not have a relevant interest that I do not consider UCPR rr 7.14 and 7.17 have any role to play.

69. Fifthly, while Mrs Malass’ submissions are described as seeking extensions of time rather than being an appeal of the Orders, the submissions made concerning irregularity are more suited to an appeal of the making of the Orders on the basis a party was not properly joined.

70. I do not consider that Mrs Malass has established that orders 5 and 6 made on 4 April 2025 were made irregularly for the purposes of r 36.15.

Rule 36.5/1.12

71. In the alternative Mrs Malass relies on rr 36.5 and 1.12. The Council accepts extensions can be granted under rr 36.5 and 1.12 but opposes such orders in the circumstances. Rule 1.12 provides a broad judicial discretion to extend time and is designed to relieve against injustice in the particular circumstances; FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268; [1988] HCA 13 at 283-4 per Wilson J. I note that in that case the rule considered was Pt 2 r 3 of the Supreme Court Rules (repealed) which was in the same terms as r 1.12. As identified by the Council, Handley AJA (with whom Tobias JA and Basten JA agreed) said in Pell v Hodges [2007] NSWCA 234 at [30]:

[30] The discretion conferred by UCP r 1.12 is not in terms fettered, but a plaintiff seeking an extension of time must establish a proper or adequate reason for this being granted: Franklin House Ltd v ANI Corporation Ltd (2/11/94 Windeyer J unreported); Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597, 622-3. Proof is required of a satisfactory explanation for the delay.

72. Rule 36.5 also provides for discretion to be exercised to extend time for compliance with orders, within the context of the importance of the finality of orders; Eveston v Environmental Protection Authority [2021] NSWLEC 54 at [128]-[137].

73. The notice of motion before the Court has been filed in civil enforcement proceedings with a lengthy history set out at length in Malass No 4 at [21] and summarised above in the chronology in [24]. In brief Mrs Malass obtained development consent for a house to be built on the property in 2017 subject to conditions and what has been built does not comply substantially with that development consent or the construction certificate issued pursuant to it. The Council issued a SWO in 2020 which was not complied with. A compliance order was also issued by the Council on 10 March 2021. Civil enforcement proceedings seeking to enforce the SWO inter alia were commenced by the Council in August 2021. The proceedings were stood over for a considerable period to enable an appeal by Mrs Malass of the SWO, and her appeals against the refusals by the Council of DA2020.239 lodged in January 2021 and a building information certificate in relation to the property. The three appeals were dismissed on 12 May 2022 and the civil enforcement proceedings then progressed to finality. Malass No 4 was handed down in March 2024. In the course of the proceedings Mrs Malass pleaded guilty to contempt of court orders restricting building works on the property on two occasions and her contempts of court orders were found to be wilful. Mrs Malass and her family currently reside in a largely completed unlawful dwelling which impacts the neighbours and the neighbourhood due to its bulk and scale inter alia, see Malass No 4 at [58]-[60]. No occupation certificate has been issued. Mrs Malass’ submissions made no reference to this history. This history is highly relevant to whether I exercise my discretion to extend time under r 36.5. Importantly it informs my view of what the status quo is, in relation to which I accept the Council’s submission that the orders for vacation and demolition made in April 2024 reflect the status quo which should be applied.

74. Given that lengthy history Mrs Malass’ evidence and the submissions made on her behalf that she ignored numerous communications and realises she was mistaken in doing so can have little weight.

75. While I do have greater detail about the ages of the children and the particular impacts it is perceived they will suffer if they are required to move from their home, as the Council identified, essentially no new evidence is before the Court that was not already known at the time that the Orders were made.

76. One basis for Mrs Malass’ application for extensions of time is so that she can pursue the current Class 1 appeal in relation to DA2024.1 (2024/385895). That submission must be assessed in light of the history of these proceedings and the unlawful work conducted at the property. The Orders were made in the face of Mr Malass as agent submitting Mrs Malass should have a further opportunity to make a development application, which I considered at Malass No 4 at [68]-[72]. Part of the reason for rejecting that submission was that Mrs Malass had already had one opportunity to pursue Class 1 appeals of the Council’s refusal of a development application, building information certificate and the SWO. The effect of the amended orders if made would be to fundamentally undermine the basis of the Orders.

77. I recently did not strike out the Class 1 appeal (2024/385895) as an abuse of process in Malass v Strathfield Municipal Council [2025] NSWLEC 44. The Council’s application by notice of motion was based on the very substantial similarity between DA2020.239 and DA2024.1. A finding of abuse of process requires a high bar to be established.

78. I do not make any assumption that the outcome of the Class 1 appeal will be a regularisation of the use of the present structure on the property. The parties agreed for the purposes of the notice of motion filed 12 December 2024 that:

79. in a quantitative analysis of a comparison of DA2020.239 and DA2024.1, differences would be described as minor;

80. in a qualitative understanding of difference, there is disagreement between experts (town planners) on whether that difference is meaningful;

81. for the purposes of the notice of motion I did not need to resolve whether the qualitative differences between the experts are meaningful.

82. I held that abuse of process considerations in the Class 1 appeal context should not include the history of the Class 4 civil enforcement proceedings at [46]. A similar observation should apply here in that the Orders should not be further delayed for another Class 1 appeal relating to a development consent seeking approval for use of the property which is presently unlawful. Mrs Malass’ submission that the Orders should be responsive to the Class 1 appeal must be considered in light of the lengthy history of litigation in relation to the property.

83. While I appreciate that from the children’s perspective in particular the situation is extremely unfortunate if they have to move, the circumstances resulting in the Orders being made were entirely of Mrs Malass’ making.

84. Mrs Malass is seeking an indulgence from the Court and bases her current application in part on her and her husband’s poor financial circumstances. No basis for her understanding that demolition will cost $10 million is provided in her affidavit. There is very little documentation to support the general statements made about her poor financial situation.

85. It is clear from her cross-examination that she has not provided a complete picture of her financial position to the Court nor that of her husband to whom her affidavits refer. Mrs Malass is the sole director and shareholder of SKJM Consortium Pty Ltd. SKJM Consortium Pty Ltd is the borrower on the property according to the loan document attached to her affidavit dated 9 April 2025. It follows that while Mrs Malass’ affidavit states that ‘we’ are liable for payment of the borrowings, the legal entity responsible is that company. That company purchased a property in Berrima for $6.8 million in 2023. There is no registered mortgage on the title of that property. Mrs Malass’ evidence is that it is subject to borrowings about which she had no knowledge as her husband dealt with such matters. No details of the circumstances of that purchase such as the financial arrangements made to achieve it are provided in her evidence. The same company owns two other properties according to the business records in evidence. I consider I have incomplete information about Mrs Malass’ true financial position and that weighs against this application being successful.

86. In light of all the above circumstances no proper or adequate reason is provided for the extensions of time sought. I decline to exercise my discretion to extend time for compliance with orders 5 and 6 under rr 1.12 and r 36.5.

87. Mrs Malass’ notice of motion dated 17 March 2025 will be dismissed.

Costs

85. These are Class 4 proceedings and costs generally follow the event meaning that Mrs Malass would be liable for the Council’s costs of the notice of motion as the successful party in the absence of any disentitling conduct (there is none). The usual order would therefore be that Mrs Malass pay the Council’s costs. Unless an application by notice of motion is made for an alternative order for costs within two weeks of the date of judgment the costs order will be made that Mrs Malass pay the Council’s costs of the notice of motion dated 17 March 2025.

Order

86. The Court orders:

87. Mrs Malass’ notice of motion dated 17 March 2025 is dismissed.

88. Unless an application is made for an alternative order for costs within two weeks of the date of judgment Mrs Malass is to pay the Council’s costs.

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