Koutsovasiles & Ors v Randwick City Council [2002] NSWSC 588

New South Wales Supreme Court

CITATION : Koutsovasiles & Ors v Randwick City Council [2002] NSWSC 588 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3352/99 HEARING DATE(S) : 12 April 2002; 27-30 May 2002 inclusive JUDGMENT DATE : 5 July 2002

PARTIES : Jim Koutsovasiles, Matoula Koutsovasiles and Chris Jim Koutsovasiles v Randwick City Council JUDGMENT OF : Davies AJ at 1

COUNSEL : M. Galvin (Plaintiff) A.J. Thompson (Defendant) SOLICITORS : Creagh & Creagh (Plaintiff) Bowen & Gerathy (Defendant) CATCHWORDS : Local Government - whether a Council entered into contract with property owners - whether a proposed arrangement was the proper subject matter of contract - whether an order of specific performance should be refused on public interest grounds DECISION : Application dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

DAVIES AJ

Friday 5 July 2002`

3352/99 JIM KOUTSOVASILES, MATOULA KOUTSOVASILES and CHRIS JIM KOUTSOVASILES v RANDWICK CITY COUNCIL JUDGMENT 1 HIS HONOUR: The plaintiffs are Jim Koutsovasiles ("Mr Vasales"), his wife Matoula and his son Chris. Mr Vasales and his wife are the owners of residential premises at 90 Barker Street, Kingsford ("No 90"). Mr Vasales and Chris are the owners of the adjoining property at 88 Barker Street, Kingsford ("No 88"). Running between the two properties is a lane named Kennedy lane which, at the commencement of the period with which we are concerned, was unmade. The two properties have been occupied by members of the family. Mr Vasales, his wife and Chris currently reside at No 88. 2 The plaintiffs seek a declaration that, on or about 22 June 1995, they and the defendant, the Randwick City Council ("the Council"), entered into a contract which related to Kennedy lane and which was set out in a letter dated 22 June 1995. The plaintiffs seek an order for specific performance of that alleged contract. 3 In the proceedings, Mr M. Galvin of counsel appeared for the plaintiffs and Mr A.J.Thompson of counsel appeared for the Council. 4 Evidence was given to the Court of events which occurred over many years. However, I do not propose to do more than give a general picture of the pattern of events. The principal witness for the plaintiffs was Mr Vasales. He conducted or was responsible for all negotiations with the Council. In 1998, Kennedy lane was six metres in width for most of its length from Barker Street to near the southern end of the two properties where it widened into a roadway. In 1998, Mr and Mrs Vasales sought the closure of a three metre strip on the western boundary of 90 Barker Street, with a view to incorporating that strip into their property. That closure was approved by the Council subject to the provision of a concrete footway, 1.2 metres wide, along the lane at the cost of the Vasales and the provision of a three metre wide splay at the frontage with Barker Street. Mr Vasales at first objected to those conditions. However, the cost of the path was fixed by the Council at $1,930, if paid within 3 months. Mr Vasales forwarded his cheque for that amount on 4 July 1990, outside that period. The closure then went ahead. 5 On 7 July 1990, Mr and Mrs Vasales sought the closure of an additional 600 mm on the west side of the strip which had been incorporated into No 90. On 4 December 1990, the Council approved that closure and the closure was given effect. The result was that Kennedy lane between the two houses was reduced to a strip 2.4 metres wide. 6 On 16 January 1992, Mr Vasales was informed by the Council that the Council would not construct the concrete footpath until Mr and Mrs Vasales had erected a new boundary fence and that the $1,930 would be retained. As this had been received after the three months period specified by the Council, the money was to be held by the Council and taken into account after the works had been completed.