Council of the City of Sydney v Samadi [2010] NSWLEC 125

Land and Environment Court of New South Wales

CITATION : Council of the City of Sydney v Samadi [2010] NSWLEC 125

APPLICANT Council of the City of Sydney PARTIES : RESPONDENT Nasser Samadi

FILE NUMBER(S) : 40148 of 2010

CORAM: Pepper J

KEY ISSUES: PRACTICE AND PROCEDURE :- application to adjourn proceedings pending resolution of Class 1 proceedings - Class 1 appeal sought development consent that would not regularise the use the subject of the Class 4 proceedings but would render it largely futile - no guarantee that appeal if Class 1 appeal successful - unlawful development would cease because new development would commence - application to adjourn dismissed

LEGISLATION CITED: Civil Procedure Act 2005 s 56

DATES OF HEARING: 15 and 16 July 2010

EX TEMPORE JUDGMENT DATE : 16 July 2010

APPLICANT Mr M Baird SOLICITORS Council of the City of Sydney LEGAL REPRESENTATIVES: RESPONDENT Mr M Staunton SOLICITORS Gadens

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PEPPER J

16 July 2010

40148 of 2010 Council of the City of Sydney -v- Nasser Samadi

EX TEMPORE JUDGMENT

Introduction 1 HER HONOUR: Before the Court is an application made by Mr Nasser Samadi to adjourn Class 4 proceedings filed in the Court on 5 March 2010 by the Council of the City of Sydney ("the council"), pending resolution of a Class 1 appeal filed by Mr Sanda Svedas, on 18 June 2010. The Class 1 proceedings are the subject of expedition before the Court and have been set down for a two day hearing commencing 26 August 2010. 2 The application is made principally on the basis that to proceed with the Class 4 application, in light of the expedited Class 1 proceedings, would result in wasted costs by Mr Samadi if the Class 1 appeal is successful. The application is opposed by the council. 3 In my opinion, the adjournment ought not be granted because the likelihood of potential wasted costs is not sufficiently high to warrant it. Factual Background and Chronology 4 The affidavits and exhibit, referred to in greater detail below, reveal the following factual background to the application. 5 On 29 May 2009, the council posted to Mr Samadi a Notice of Intention to Give an Order that premises of which he was the owner were being used for residential purposes for which development consent was required but had not been obtained. The order was served at the last address known to the council for Mr Samadi. 6 On 4 June 2009, Gaden Lawyers ("Gadens"), acting on behalf of Mr Samadi, acknowledged Mr Samadi's receipt of the Notice and stated that there was a dispute between Mr Samadi and the council as to whether the premises required development consent to be used for residential purposes. Gadens requested copies of documents relied on by the council in support of its assertion that the residential use required development approval. 7 On 16 June 2009, Gadens again wrote to the council on behalf of Mr Samadi. Gadens stated to the council that Mr Samadi had advised it that the previous owner of the premises had provided him with historic records demonstrating that at all material times the premises were being used as a residence. The letter set out in detail Mr Samadi's position in rejecting the council's contentions concerning the unlawful use of the premises. Further, Mr Samadi disputed one of the reasons for issuing the Notice of Intention, namely, that the premises in their current state were not compliant with the Building Code of Australia, and therefore, were not suitable for residential uses. 8 On 24 July 2009, the council wrote to Gadens in response to its letter of 16 June 2009. On 21 September 2009, the council issued an order to cease the use of the premises for residential purposes ("the order"). The reasons for the order were as follows: 1. The premises have been approved for commercial use only, following development application 44/81/0036 from 1981;