Council of the City of Sydney v Galanis [2012] NSWLEC 210

Land and Environment Court New South Wales

Medium Neutral Citation: Council of the City of Sydney v Galanis [2012] NSWLEC 210 Hearing dates: 7 September 2012 Decision date: 07 September 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: Order for substituted service made. Catchwords: PRACTICE AND PROCEDURE - substituted service of originating process. Legislation Cited: Environmental Planning and Assessment Act 1979 s 121B Category: Procedural and other rulings Parties: Council of the City of Sydney (Applicant) Michael Galanis (Respondent) Representation: COUNSEL: Mr K Glanville, solicitor (Applicant) N/A SOLICITORS: Council of the City of Sydney (Applicant) N/A File Number(s): 40802/12

EX TEMPORE Judgment 1This is the return date of a summons seeking, among other things, a declaration that the respondent, Mr Michael Galanis, has failed to comply with the terms of an Order No 4 relating to premises at 405 Riley Street, Surry Hills served on the respondent, by the applicant, the Council of the City of Sydney, pursuant to s 121B(1) of the Environmental Planning and Assessment Act 1979. The Council's order concerned restoration of a decorative parapet which is said to be at risk of collapsing and falling on a public way with consequential risk of injury to the public. 2On the return of the summons today the Council said that the respondent had not yet been served and made an oral application for substituted service, with which I am now dealing. 3There is evidence from a licensed commercial agent, Mr Joseph Khoury, as to unsuccessful attempts to serve the respondent. 4On 9 August 2012 Mr Khoury attended the respondent's residence at 79 Silver Street, St Peters, but was unable to make contact with the respondent. He received information from the next door neighbour confirming that the respondent resides at 79 Silver Street, and indicating that he is an elderly man who will not answer the door and that the neighbour has had very little contact with him. On 12 August 2012 Mr Khoury attended 79 Silver Street again and could hear noises inside the premises. However, no one would answer the door. He made further attempts at service on 14, 16, 18 and 21 August 2012 at various times of the day but received no response from knocking on the door. On 24 August 2012 he left a note on the door asking the respondent to call him as he had legal documents from the Council. As at the date of swearing his affidavit, 6 September 2012, he had not received a returned phone call. 5On 26 August 2012 he again attended 79 Silver Street and could hear noises inside the premises but no one came to the door. Mr Khoury made further unsuccessful attempts at service on 27 and 29 August and on 2 and 4 September 2012. He has also tried calling a certain telephone number thought to be that of the respondent but the phone has not been answered. He believes that the respondent is aware of the documents and is avoiding service and that if they were left at 79 Silver Street they would be brought to the respondent's attention. 6I am satisfied on the evidence that an order should be made for substituted service on the respondent by affixing a copy of the summons, the points of claim and these orders to the front door of the respondent's premises at 79 Silver Street, St Peters. 7The applicant also seeks leave to amend its summons in a form which has been brought to the Court's attention. I propose to grant that leave. I grant leave to file the amended summons in Court. 8I make orders in accordance with the short minutes of order which I date 7 September 2012, sign and place with the papers. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2012