Ryde City Council v Chen (No 2) [2012] NSWLEC 64

Land and Environment Court New South Wales

Medium Neutral Citation: Ryde City Council v Chen (No 2) [2012] NSWLEC 64 Hearing dates: 2 March 2012 Decision date: 02 March 2012 Jurisdiction: Class 1 Before: Preston CJ Decision: Orders as set out at [33] Catchwords: ORDERS - remedy for breaches of statute and statutory orders by operation of a brothel - brothel operator evicted by owner of premises - use as a brothel thereby ceased - utilities order no longer needed to close brothel - costs of proceedings - respondents to pay applicant council's costs - apportionment of costs between operator and owner - owner not to be indemnified by operator Legislation Cited: Environmental Planning and Assessment Act 1979, ss 121B, 121ZS Cases Cited: Rushcutters Bay Smash Repairs Pty Ltd v H McKenna Netmakers Pty Ltd [2003] NSWSC 670 Ryde City Council v Chen [2012] NSWLEC 63 Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201 Category: Costs Parties: Ryde City Council (Applicant) Mr Jia Chen (First Respondent) Ms Hyun Kim (Second Respondent) Representation: Mr T G Howard (Barrister) (Applicant) No appearance for First Respondent Mr H N Simons (Solicitor) (Second Respondent) Planning Law Solutions Pty Ltd (Applicant) No appearance for First Respondent Remington & Co (Respondent) File Number(s): 10729 of 2011 and 40728 of 2011

EX TEMPORE Judgment

An owner evicts a brothel operator and closes the brothel 1On 22 February 2012, I found that Mr Chen and Ms Kim had breached the Environmental Planning and Assessment Act 1979 ("EPA Act") by carrying out development for the prohibited purpose of sex services premises and by failing to comply with an order under s 121B of the EPA Act to cease using the premises at unit 1A, 21-25 Rowe Street, Eastwood as a brothel: see Ryde City Council v Chen [2012] NSWLEC 63. 2I made declarations to that effect. I also granted an injunction restraining them from using or permitting use of the premises for sex services premises and related sex uses. 3Ryde City Council has also sought a utilities order under s 121ZS of the EPA Act that the electricity provider cease providing electricity to the premises for three months. The purpose of making a utilities order is to bring about a cessation of use of premises as an illegal brothel. 4Ms Kim, who is the owner of the premises, said she intended to evict the tenant, Mr Chen, who operated the illegal brothel on the premises. By so doing, she would bring about the cessation of use of the premises as an illegal brothel. Ms Kim sought an adjournment for a week and a half of the further hearing of the question of whether a utilities order should be granted to allow her to take this action. The Council did not oppose this course. 5Accordingly, I adjourned the further hearing to today and directed Ms Kim to file and serve an affidavit describing the actions she has taken to re-enter the premises and evict Mr Chen. 6As stated in Ms Kim's affidavit of 29 February 2012, Ms Kim has taken the action she promised, exercising her rights under the lease of the premises to Mr Chen. 7On 23 February 2012, Ms Kim re-entered the premises and caused the removal from the premises of the contents of Mr Chen, including all furniture, beds and possessions belonging to Mr Chen, and the storage of the contents in a self-storage warehouse at Strathfield, as contemplated in cl 17.13 and cl 19.3 of the lease. Ms Kim has paid the rent for the storage to 22 March 2012. As a consequence of these actions, the premises are now totally vacant and the premises do not have the furniture and equipment to be able to be used as a brothel. 8On 24 February 2012, Ms Kim arranged for a locksmith to change the lock for the premises. Mr Chen will not be able to enter and hence to use the premises as a brothel. 9Also on 24 February 2012, Ms Kim arranged for the premises to be cleaned by professional cleaners and painted. 10On 27 February 2012, Ms Kim endeavoured to arrange disconnection of Mr Chen's telephone account with Telstra for the telephone of the premises, however, Telstra did not oblige, insisting that only the authorised user or legal lessee of the account could arrange for cancellation. 11Officers of the Council inspected the premises on 1 March 2012 and verified that Ms Kim had taken the actions she has described. 12Ms Kim is now advertising the premises for lease to a new tenant. Ms Kim tendered an email from Ms Kim's real estate agent, Century 21 Total Real Estate at Eastwood, advising that the key for the new lock will not be given to Mr Chen or any person related to Mr Chen under any circumstances. Mr Simon, Ms Kim's solicitor, also advised the Court that Ms Kim would not provide the key to Mr Chen or related persons and will not accept rent from Mr Chen as a tenant.