New South Wales Supreme Court CITATION : Jeloudev v William Lohman [2010] NSWSC 1229 HEARING DATE(S) : 20 September 2010 JURISDICTION : Equity Division Expedition List JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 20 September 2010 DECISION : Order that defendant consent to lodgement of development application. In default, Registrar to give consent. CATCHWORDS : PROCEDURE – Judgments and orders – In general – Other matters – substituted performance – execution of document in name and on behalf of party by Registrar – whether order can be made in anticipation of non-compliance. LEGISLATION CITED : (NSW) Civil Procedure Act 2005 s 94, s 149B (NSW) Environmental Planning and Assessment Regulation 2000, cl 49 CATEGORY : Procedural and other rulings Ciavarella v Polimeni [2008] NSWSC 541 Commonwealth Bank of Australia v Gaszewski [2006] NSWSC 772 CASES CITED : Folley v Marafioti (No 2) (1972) 9 SASR 9 Kirkjian v Towers [1987] NSWSC (Unreported, Waddel J, 6 July 1987) Savage v Norton [1908] 1 Ch 290 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 PARTIES : Tamara Jeloudev (plaintiff) William Lohman (defendant) FILE NUMBER(S) : SC 10/288002 COUNSEL : Mr I Hemmings (plaintiff) SOLICITORS : Hunt & Hunt (plaintiff) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST BRERETON J Monday, 20 September 2010 2010/288002 Tamara Jeloudev v Willam Lohman JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiff Tamara Jeloudev is the registered proprietor of lot 105 in deposited plan 6017XX situate and known as 29B XXXXX Street, Beecroft. Her land is one of 4 lots in the plan, the others being lots 103, 106, and 107. Each of those lots has access to XXXXX Street over a right of carriageway constituted by four adjacent strips of land each 3.05 metres wide, together creating an access handle of some 12.2 metres at the widest point, but progressively narrowing towards the rear to 6.1 metres. Each relevant lot, is benefited by an easement over the access handle of each other lot so that the plaintiff's land has the benefit of a right of carriageway over the access handles to lots 103, 106 and 107. 2 Ms Jeloudev has lodged with the Hornsby Shire Council a development application for the reconstruction of the existing driveway over the carriageway. The proposed works involve the replacement of the existing driveway, and its widening originally at three, but now at two, locations, to provide for passing bays. 3 (NSW) Environmental Planning and Assessment Regulation 2000, cl 49, provides, by subclause 1(b), that a development application may be made by a person other than the owner of the land to which it relates but only with the consent in writing of the owner of that land. In this case, the development application relates to so much of each of lots 103, 105, 106 and 107 as is affected by the reciprocal rights of carriageway. Although, at first, the owners of lots 103 and lot 106 did not consent to Ms Jeloudev's application, they have since, by letter from their solicitors, indicated that they will do so. 4 The defendant William Harry Lohman is the registered proprietor of lot 107, and he has not consented to the development application. 5 It is now well established that the rights of the owner of a right of carriageway include to construct the carriageway, so long as in doing so there is not an excessive user and for that purpose to have the servient owner consent to any necessary application, [see, for example, Kirkjian v Towers [1987] NSWSC (Unreported, Waddell J, 6 July 1987); Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324]. 6 The plaintiff has before the Land and Environment Court an application for development approval, arising from a deemed refusal of the council to give that approval. That application has been set down for hearing on 22 and 23 September 2010, in circumstances where it had, not unreasonably, been anticipated that Mr Lohman's consent would be forthcoming – which ultimately it was not. 7 The plaintiff, by summons filed in this court on 30 August 2010 – initially by P S Graham, a surveyor and town planner, in respect of which Ms Jeloudev has subsequently been substituted as plaintiff claimed an order "granting owners' consent on behalf of" Mr Lohman to the lodgement of the development application, and an order pursuant to (NSW) Civil Procedure Act 2005, s 149B transferring these proceedings to the Land and Environment Court to be heard simultaneously with the proceedings there. When that application initially came before me in the expedition list on 10 September 2010, it seemed that the desired result would more likely be achieved if provision were made for service of the application on Mr Lohman, with a view to having it dealt with in this court, very expeditiously, if possible. On 10 September, the court made an order for substituted service (attempts to serve Mr Lohman personally having been unsuccessful, but there being evidence that mail was being collected for him from his premises). Accordingly, an order was made in the following terms: 2. Pursuant to UCPR r 10.14 order that instead of personal service the summons filed on 30 August, the Notion of Motion of 30 August and the affidavit in support of the motion sworn 30 August, the affidavit in support of the order pursuant to Civil Procedure Act sworn 30 August and any further affidavit evidence to be relied upon by the plaintiff in connection with the relief claimed in these proceedings may be served on the defendant by: (i) leaving a copy, together with a notice setting out the date, time & place of the adjourned hearing, in the mailbox at 23 XXXXX Crescent West Pennant Hills and (ii) affixing a copy, together with a notice setting out the date, time & place of the adjourned hearing, to the premises at 23 XXXXX Crescent West Pennant Hills. (iii) Service of copies of the same on McKees Legal Solicitors at 28 Ross Street, North Parramatta together a with a letter requesting Mr McKees forward the same to his former client. 3. Leave is granted to amend the return date on the service copy of the summons to 20 September at 9.30am before Justice Brereton. 4. Time for service of the summons be abridged to 15 September 2010. 5. Pursuant to UCPR r 10.14(2) the Court directs that the Summons, Notice of Motion and affidavits be taken to have been served on the defendant on the expiry of 48 Hours after the last to be complied with of one of the conditions of 2(i), 2 (ii) and 2(iii) above. 6. The proceedings be adjourned for hearing of both claims for relief before Justice Brereton on Monday 20 September at 9.30am. 7. The Court directs that any further evidence should be served together with the summons and Notice of Motion. 8 The affidavit of Gregory John Hunter sworn 15 September 2010 and the affidavit of Maureen Barbara Peatman sworn 16 September 2010 prove compliance with the order for substituted service, the consequence being that the summons is, pursuant to order 5, taken to have been served on Mr Lohman by the close of 16 September 2010. Mr Lohman was called outside the court three times today, but has not appeared. 9 The material placed before the court does not establish or indicate any matter which might reasonably have been urged or advanced on behalf of Mr Lohman against the application, or any sufficient reason for his refusing to give the consent sought. On its face, the development application in question appears to involve no excessive user of the right of carriageway. In those circumstances, in my view it is appropriate to make orders to the effect sought. 10 The plaintiff has indicated that an appropriate form of consent would be that which was sought from Mr Lohman by the architect on 2 September 2010. 11 The course of proceedings to this point – and in particular, the apparent absence of response from Mr Lohman, his apparent absence from his property and his apparent disregard of the present proceedings – suggests that there is a high degree of likelihood that he will not comply with an order directing him to execute the consent within a short period of time. In those circumstances, a question arises as to whether the court can make an order that the consent be executed by the Registrar pursuant to Civil Procedure Act, s 94, before Mr Lohman himself has been allowed an opportunity to do so. 12 It is clear that the power under s 94 is conditioned on non-compliance with a judgment or order directing the party bound to execute the relevant instrument. However, in Savage v Norton [1908] 1 Ch 290, Parker J, while holding that, before making an order under a corresponding provision, the court ought as a rule be satisfied that the person originally ordered to execute an instrument had neglected or refused to do so, nonetheless allowed that there may be cases in which the court might make an anticipatory order, because it appeared that the person ordered to do so had in fact by his conduct already demonstrated that he refused to do the act ordered, in which case the court may make an order at once because of the probable futility of any proper request [see also Folley v Marafioti (No 2) (1972) 9 SASR 9]. 13 As I indicated in Commonwealth Bank of Australia v Gaszewski [2006] NSWSC 772, an order appointing the registrar may be made prospectively, although there cannot yet be said to be non-compliance by the defendant with the order to execute, if the circumstances demonstrate the probable futility of any proper request, and the order is framed in such a manner as requires the relevant non-compliance to be established before the power is exercised. This view has been followed, by Hamilton J in Ciavarella v Polimeni [2008] NSWSC 541. 14 As I have foreshadowed, Mr Lohman's attitude to the proceeding to this point demonstrates to my mind the probable futility of any proper request for an execution of the consent on his behalf. I will make orders on the hypothesis that, armed with them, the plaintiff will be able to proceed with her application in the Land and Environment Court this week, confident that Mr Lohman's consent will by one means or another be given, and that any formal giving of development approval by that court could be deferred until either Mr Lohman or, if he does not comply, the Registrar, has executed the requisite document. 15 Accordingly, I make the following orders: 1) Order that the defendant by 27 September 2010 consent for the purposes of Environmental Planning and Assessment Regulation 2000, cl 49(1)(b), to the lodgement of development application DA1366/2009 for the carrying out of construction works in the right of carriageway at 29B XXXXX Street, Beecroft and do all things and execute all documents necessary for that purpose, including a document in the form of that at page 4 of the affidavit of Peter Graham dated 9 September 2010, a copy of which I initial and place with the papers. 2) Order pursuant to Civil Procedure Act , s 94, that upon the plaintiff filing an affidavit by its solicitor proving service of these orders in accordance with the following orders and that the defendant has not complied with the preceding order, the consent be executed by the Registrar in the name and on behalf of the defendant. 3) Order that for the purpose of order 2 (but not for the purpose of any application for contempt), notice of these orders may be sufficiently served by leaving a copy in the mail box at 23 XXXXX Crescent, West Pennant Hills and affixing a copy to the premises at 23 XXXXX Crescent, West Pennant Hills. 4) Reserve liberty to apply by arrangement with my associate in the event of any difficulty arising in the implementation of the foregoing orders. 5) Direct that these orders be entered forthwith. 6) Order that the defendant pay the plaintiff's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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