Land and Environment Court New South Wales Medium Neutral Citation: Burwood Council v Ralan Burwood Pty Ltd [2015] NSWLEC 27 Hearing dates: 25 February 2014 Date of orders: 25 February 2015 Decision date: 25 February 2015 Jurisdiction: Class 4 Before: Biscoe J Decision: See [11] Catchwords: INJUNCTIONS – extension of ex parte restraining order for a period. Category: Procedural and other rulings Parties: Burwood Council (Applicant) Ralan Burwood Pty Ltd (First Respondent) Moit Rock & Dirt Recycling Pty Ltd (ACN 154766079) (Second Respondent) N. Moit & Sons (NSW) (ACN 074571510) Pty Ltd (Third Respondent) Moits Pty Ltd (ACN 155485019) (Fourth Respondent) Michael Moit (Fifth Respondent) Representation: COUNSEL: T S Hale SC (Applicant) P O'Brien, solicitor (First Respondent) N/A (Second to Fifth Respondents) SOLICITORS: Houston Dearn O'Connor (Applicant) Harris & Company (First Respondent) N/A (Second to Fifth Respondents) File Number(s): 40845/14 EX TEMPORE Judgment 1. On 20 February 2015, on the urgent motion of the applicant Burwood Council, I joined the second to fifth respondent to the proceedings and, upon Council giving the usual undertaking as to damages, made an order until 5pm today restraining those respondents from removing a pillar crane and weighbridge from 306 Racecourse Road, Clarendon and from damaging those items. Council now seeks to extend the restraining order until 5pm on 13 March 2015, on which date the proceedings are listed before the List Judge for directions. I propose to grant that extension. 2. The background is this. On 15 May 2008 the Court granted modification of a development consent to construct a major mixed use development consisting of dwellings, shops and commercial suites at 1 Railway Parade, Burwood, subject to conditions. 3. Condition 47 provides that: The pillar crane and weighbridge are to be carefully retained, safely stored for safekeeping during construction works and adaptably reused in a publicly accessible location as indicated by the plans. 1. The development has been completed. Council's case is that in breach of condition 47 the developer, being the first respondent Ralan Burwood Pty Ltd, failed to comply with condition 47. Consequently, the Council brought these class 4 proceedings against Ralan Burwood seeking orders that it comply with condition 47. 2. Ralan Burwood filed affidavits to the effect that it did not know where these items were and consequently could not comply with condition 47. Ralan Burwood also commenced proceedings in Class 1 of the Court's jurisdiction seeking modification of the development consent by the deletion of condition 47 on, inter alia, the ground that it does not know where the items are and therefore cannot comply with condition 47. 3. An affidavit of Michael Limnos, a Council officer, sworn on 4 December 2014 indicates that he tried to locate the weighbridge and crane and that Mr Kelly and Mr Mackey from Ralan Burwood told him to talk to Michael Moit (misspelt in his affidavit as Moits), among others. Mr Limnos contacted Mr Moit and had a number of meetings with him. On one occasion in June 2014 Mr Moit said that the items were taken by somebody off the building site and were being stored, he did not know who took them nor where they were being stored but that person contacted him and asked for payment for the release of the items. Mr Moit also told Mr Limnos on one occasion that he had sent Ralan Burwood an invoice on behalf of the person holding the weighbridge and crane and that when it was paid and the money was in the bank the items would be released. In August 2014 Mr Moit told Mr Limnos that he had spoken to the person storing the items and they were prepared to lower their cost to release them. 4. Mr Mark Mackey swore an affidavit on 19 December 2014 for Ralan Burwood. He is an accountant for one of the companies in the Ralan Group. He recounts that in June 2014 he received a telephone call from someone who identified himself as Michael Moit and that arrangements were made for Mr Moit to attend the Ralan Group's offices for the purpose of discussing the pillar crane and weighbridge. On 1 July 2014 Mr Moit attended with someone else and met with Mr Mackey and a Mr Kelly. Mr Moit appeared to indicate that he did not know where these items were and to suggest that their whereabouts had something to do with Steve Nolan Constructions, which had contracted Moits on the project. 5. Mr Yustin Koprivnjak says in an amended affidavit of 20 February 2015 that he obtained an investigator's report consequent upon instructions to the investigator to attend 306 Racecourse Road, Clarendon and search for a pillar crane and weighbridge. He annexes a copy of the report. It indicates that the investigator has found the items hidden at the back of 306 Racecourse Road, Clarendon. The evidence of Mr Koprivnjak indicates that Mr Michael Moit is involved in three companies that have operated from the site, being Moit Rock and Dirt Recycling Pty Ltd, N. Moit and Sons (NSW) Pty Ltd and Moits Pty Ltd; and that Moits marketing material states that Mr Michael Moit and his brothers are the "driving force" behind "Moits" whose address is 306 Racecourse Road, Clarendon. 6. It was on the basis of this evidence, upon which Council also relies today that (as stated above at [1]) on 20 February 2015 I joined the three companies referred to at [8] and Mr Michael Moit as the second to fifth respondents and made a restraining order against them until 5pm today. The evidence of service now put before me indicates that they have been served with the orders made on that occasion and other documents except, regrettably, for two of the affidavits read on the ex parte application. However, none of them have appeared today. 7. In my opinion, a sufficient case has been made to extend the restraining order made on 20 February 2015 against the second to fifth respondents until and including 5pm on Friday 13 March 2015, on which date the proceedings will be in the List Judge's list for directions. There is at least a serious question to be tried and the balance of convenience favours that course. Council should consider amending the summons to include prayers for relief against the second to fifth respondents. 8. Upon the applicant giving the usual undertaking as to damages, the Court orders that: 1. the second, third, fourth and fifth respondents, their employees and agents are restrained until 5pm on 13 March 2015 from– 1. removing the pillar crane and weighbridge from 306 Racecourse Road, Clarendon NSW; 2. damaging the said items. 1. A copy of these orders, together with all evidence relied on by the Council when obtaining them, insofar as it has not already been served, is to be served on the second, third, fourth and fifth respondents on or before 2 March 2015. ********** 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: 04 March 2015