The bucket list‎ > ‎

12.05.17 - Statement of Claim

For the stones will cry out from the wall, and the beams of the woodwork respond. (Habakkuk)



Instructions



Fee postpone



Fee



Court Fee






















COURT DETAILS



Court

Supreme Court of NSW

Division

Equity Division

Registry

Sydney, Queens Square

Case number

2017/

 

TITLE OF PROCEEDINGS



First Plaintiff

Second Plaintiff

Amir Bodenstein

Rachel Bodenstein


First Defendant

Zois Voukelatos

Second Defendant

Vesella Voukelatos


FILING DETAILS



Filed for

The Plaintiffs

Contact name
Contact telephone

Contact email

Amir Bodenstein
0401 101 781

amirbodenstein@gmail.com


RELIEF CLAIMED




1.            An order to pay the Plaintiff damage of $6,000,000.00
 
2.            Costs.
 
3.            Any or such further order that this Honourable Court may apply.


PLEADINGS AND PARTICULARS

The Plaintiffs rely on the following facts and assertions:


39 GLEBE POINT ROAD, GLEBE

The D
efendants are the Landlords of 39 Glebe Point Road, Glebe, Sydney ("39 GPR") since 1989, the roots of the poplar and olive trees in Dan Minogue Park ("Park") irrevocably damaged 39 GPR, and the Plaintiffs lease 39 GPR for 15 Years ("Deed").

THE DEFENDANTS

The First Defendant Mr Zois Voukelatos ("Defendant") is a non-practicing accountant, and the
Second Defendant is his wife Mrs Vessela Voukelatos both having dual citizenship, Australian and Greek plus also jointly owning and managing the Halliki Hotel on Lefkada Island, Greece.

THE PLAINTIFFS

The First Plaintiff Mr Amir Bodenstein ("Plaintiff") is an entrepreneur with expertise in the building and food industries and the Second Plaintiff is his wife Mrs Rachel Bodenstein, an optical technician with administrative skills, both born in Israel and having two dependents.

On learning of structural damage, Leichhardt ("Council") issues an Emergency Order and an independent report found the building rotates but the Defendant prefers civil engineer Phillip Johnston's ("PJ") report after which a compliance officer determines the cracking is cosmetic.

A. Emergency Order: 1

After informing Council of the significant costs implied in rectifying structural damage caused by tree roots or other factors two tenants are served with termination notices but the latest tenant's analysis reports severe building distress then Council acts issuing an Emergency Order.

a 1. Tree roots getting under

After noting that tree roots might be causing structural damage to 39 GPR, PJ is engaged who reports that cracking of both the front and east walls might be caused by other factors, the Defendant informs Council of the significant costs implied in rectification.

001. The east sidewall

39 GPR is an 1880's two-story terrace on the corner of Francis Street and Glebe Point Road, comprising a ground floor restaurant and first floor residence fronting Glebe Point Road and a common wall with no. 41 plus a 20 meter east sidewall adjoining the Park ("Wall"). 

002. The tree roots

For many years two poplar trees and an olive tree grew in the Park along the Wall and the backyard their roots caused structural and sewerage pipe damage to the building at different locations and in time also penetrating and disrupting the sandstone foundations.

003. The poplar tree

The roots of the poplar tree near Glebe Point Road had cracked and lifted the
 Wall encroaching it by 14 cm into the Park and dislodging the front wall by 17 cm while the olive tree had split the building in two while the second poplar tree near the back had disrupted sewerage pipes.

004. The Council

In 1989 the Defendants buy the building and soon after they receive compensation from Council for sewerage blockage caused by the second poplar tree and later a structural engineer found the front wall to be unstable recommending it be replaced.

005. Mr Phillip Johnston

In 1990, the Defendant commissions
PJ who reports that the front wall poses a threat to public safety and that there were many cracks in the walls including a large crack in the Wall adjoining the Park.

006. Foundation movement

PJ also reports that two well-established poplar trees close to the building may have caused some of the cracking and that some cracks may be due to other factors, e.g. differential foundation movement.

007. Tree roots getting under

The Defendant sends a letter to Council reporting that a crack, that had developed on the 
Wall, might be due to the tree roots getting under the foundation and moving the Wall which is very serious since the damage would require significant cost to rectify.

a 2. Some cracks are found

PJ certifies the completed work of rebuilding the front wall and a new tenant, Mrs Davidson, asks that the Defendant who returned to live in Greece to fulfill his responsibilities but she is issued with a termination notice and later some cracks are found in the parapet wall

008. The front wall

In October 1990, PJ advises restraining the existing front wall of the attached building no. 41 Glebe Point Road and reports that the wall of no. 39 had been demolished down to just above the first floor ceiling and had cracked from the party or common wall.

009. The Defandant Depart Australia

In December 1990, the Defendant files a request to Council to allow him an extension of 90 days to perform certain work relating to fire safety compliance in the coffee lounge area, the reason being that he soon would depart Australia and did not expect to return in the immediate future.


010. W
ork certification

In 1991, PJ certifies the completed work of rebuilding the front wall of no. 39 with temporary ties to no. 41 in accordance with the structural details shown on the Certificate dated 6 October,1990.

011. Scottish corner cafe

In 1996, Mrs Davidson purchases the "Scottish Corner Cafe" being operated at the building by Alan Calder and Sylvia Howden and then approaches the real estate agent L.J Hooker ("Agent") to ask that the owner fulfill his responsibility for the restoration of his own property.

012. Termination Notice: 1

In December 1996, Mrs Davidson leases the property for 3 years with 3 year option and in February 1997 the Agent notifies her that as per Clause 14.2 of the lease that the Owner is terminating the said lease.


013. The fourth tree

A fourth large tree is located at the back yard behind the rear wall of the building with its roots
interfering with plumbing and blocking the toilet's sewerage pipes after which the Agent lodges an application to Council for its removal and then the defective pipe is replaced.

014. Owner's consent

In 1998, Mrs Kirkpinar purchases the business from Mrs Davidson and asks for the Owner's consent to approach the Council in respect of a license for tables and seating in front and alongside the building plus a change in usage from a milk bar to a cafe.

015. Development Application

In 1999, with the Defendants living in Greece, Mrs Kirkpinar files a Development Application ("D.A.") for bi-poled doors and two windows in the Wall to which the Defendant signs off but only if the Council passes the project and the work is carried out and paid for by the tenant.

016. Some cracks

The Agent commissions a quote for roof repair which states that the roof had been repaired often and is in poor condition plus another quote from a plumber to remove the filling and replace the rotten flooring of the first-floor bathroom while some cracks are found in the parapet wall.

a 3. Emergency Order: 1

The newer tenant in turn is served with a termination notice for a breach then the newest tenant, Mr Grant, engages a structural engineer for a pre-D.A. analysis who reports severe distress after which Council issues an Emergency Order for building repair as it might become dangerous.

017. Termination Notice: 2
 
Mr Theo Casimatis ("Lawyer") serves Mrs Kirkpinar a Notice of Termination as she is in breach of the terms of the Lease, and in 2000 Mr Jack Grant signs a 5 plus 5 years lease for a Thai restaurant and proposes renovation including opening the sidewall onto the park. 

018. Severe distress

BSB Structural Engineers Ltd, commissioned by Mr Grant in the preparation of a pre-D.A. report the Wall is showing signs of severe distress with rotation outwards and recommend the underpinning of the sidewall and installation of an internal steel framework.

019. The walls bent

The Defendant sends to the Agent PJ's 1990 report together with the Michael C. Whelan’s 1983 Surveyors’ Certificate, commissioned by J.B. Lang & Burke Solicitors, which found a bend and encroachment of 0.14m of the Wall and one of 0.17m of the front wall. 

020. Lessee to renovate

The Agent calculates the loss of rent, re Mr Jack Grant, to 11 December 1999 to be $7928.58 while the Defendant wants to bind him to commit to renovate within 12 months with a penalty for non-compliance of 10 per cent of the base rental.

021. Emergency Order: 1

After the final BSB report finds that the sidewall requires immediate repairs and that it should be immediately braced prior to rectification, in February 2000 Council issues an Emergency Order to repair it and make structural alterations as the building is likely to become dangerous.

B. A Fairy Godmother

With the Defendant considering as favorable a consultant engineer's report stating that the Wall defect has rotated the whole building, he then locks out the Lessee and wants a new contract but the Agent wonders whether the Lessee will be a 'fairy godmother' in resolving all of his issues. 

b 1. Rotated the whole building

With the Defendant stating that the BSB report will have onerous consequences for him after the Lessee created a 'honests' nest' at Council by submitting it, consultant engineers, Rooney & Bye, find that the Wall bows in and out and appears to have rotated the whole building.

022. Structural deficiency inadequacy

Mr Grant states that PJ told him that the structural deficiency within the Wall was highlighted in his earlier report, that no records are available as to the repair of this Wall and that he should not be held responsible for the rectification of someone else’s property.

023. Hornets' nest

The Defendant states that the BSB report was unfavorable causing him to have onerous consequences as an owner and that he is sure that if the Agent were aware of the report he would have tried to advise the Lessee not create a 'hornets' nest' with Council.  

024. No concern raised in 1990

The Defendant states to Council that in 1990 there was no concern raised about the Wall and this can be confirmed by Mr Dolan i.e. if he is still working for Council, and that he will urgently address the problem and take all necessary action to see that both Orders are lifted.

025. Independent report

The Defendant asks the Agent to keep Council posted soon and regularly on this matter and to inform Council that they are working on it while the Lawyer advises the Agent to get an independent report.

026. Rotated the whole building

Consultant engineers, Rooney & Bye (Aust.) Pty Ltd find the Wall rotates in an easterly direction and bows in and out for its full length and this movement of the wall appears to have rotated the whole building.

b 2. Lock out 1: Grant

After the Defendant considers that the Rooney & Bye report is favorable asking that Council lift the Order, the Lessee requires a rent holiday during rectification work that Council eventually authorises, the Defendant locks out the Lessee due to monies owing to him under the Lease.

027. Rectification soon

Rooney & Bye recommend a further and more detailed investigation by a qualified structural engineer to determine the appropriate course of action and that the rectification work should be carried out in the near future to ensure the Wall's stability.

028. Near future

The Defendant considers the Rooney & Bye report as favorable and asks the Agent to fax it to Council requesting them to lift the order and assuring them that they the owners will carry out the necessary repairs in the near future which the Agent duly does.

029. Rent holiday

As the matter is urgent Mr Grant’s Lawyer understands that the Defendant agreed to remedy the structural defects and he trusts that his client will not be liable to pay rent for the period that he is prevented from completing his intended fit-out works and occupying the premises.

030. Rectification quotes

Two quotes are submitted: L.S, Booth Pty Ltd, Underpinning & Rectification Specialists, for $59,000.00 to underpin the footing and jack the building, and Advanced Underpinnings Aust. PL, owned by Mr Grant, for $14,600.00 while BSB provides the drawing of the rectification plan.

031. Repair consent

The Defendants give their consent for the repair of the Wall and state that the installments will only be paid for if the work is carried out in a manner that is acceptable to both Council and their structural engineer.

032. Council authorisation

Council refers to the Emergency Order and authorizes the works to be carried out in accordance with BSB Engineering plans with the proviso that the needs of other park users be respected and a public risk insurance policy of $10,000.00 be lodged prior to commencement of works.

033. Defendant liable
 
The Defendant is also liable for damage to the park and utilities, must lodge a refundable bond for $5,000.00 prior to commencement and must provide to Council a certificate of rectification and verification of structural adequacy from a supervising structural engineer on completion of works.

034. Lockout 1: Grant

The Defendants authorise the Agent to lock out Mr Grant as he has never paid rent on time; that rent is still owing for July and August; that no money re repair of the wall will be provided until the rent is up to date, and finally they would be pleased to see him go. 

b 3. A fairy godmother

The Defendant is concerned that the Lessee has already cost him too much time and money but asks his Lawyer to ask the Lessee to sign a new contract to cover indemnity issues who, in turn, wonders whether the Lessee will be a 'fairy godmother' solving all of the Defendant's issues.

035. New contract

The Defendant inquires of the Agent as to whether Mr Grant will sign a basic building contract to cover indemnity issues raised by the Lawyer in respect of the wall underpinning before he signs the contract handing over 25% of the quoted amount. 

036. When will the work start

In October 2000, the Defendant is concerned that Mr Grant has cost him a lot of time and money so far and asks the Agent whether the Lawyer will approve the contract and, if so, when will the work start.

037. Advanced Underpinnings

Mr Grant's lawyer requests that the Lawyer obtain new instructions from the Defendant as to whether he would either surrender the existing Lease or transfer to a new lease proposed to be granted to Advanced Underpinnings Aust. Pty Ltd.

038. A fairy godmother

The Lawyer's opinion is that the Defendant would be better off surrendering the Lease and seeking a new tenant though it would involve the Defendant repairing the Wall at a higher cost as Mr Grant is unlikely to prove a 'fairy godmother' in resolving of all the Defendant's issues.

C. Down Under

After signing a new contract for underpinning works the parties are again in dispute resulting in the lockout of the Lessee which is overturned, while a new rectification contract is signed but the Lessee withdraws and a compliance officer states that the cracking is only aesthetic.

c 1. Carefully peruse

After the Defendant informs his Lawyer that he is reluctant to surrender the Lease as the Lessee is required to perform capital improvements, they sign a new contract for underpinning works with special conditions while the Agent is instructed to very carefully peruse Mr Grant's newly contract.

039. Lease surrender

The Lawyer also states that since Mr Grant has not been paying rent to date, that he has no confidence in him to resolve all outstanding issues and that he does not know where Mr Grant is coming from, it would be best to surrender the Lease.

040. Lessee to renovate

The Defendant writes to the Agent stating that he cannot kick out the Lessee unless he is in breach of the Lease and is adamant that the Lessee is obliged to perform, under the said Lease, specified capital improvements to the building otherwise rent will be increased.

041. New contract

The Defendants with the Agent decide to sign a new contract with Mr Grant for rectification works for contiguous underpinning of 500mm width, a depth to match the existing foundation and with the assumption that existing structure is within the survey boundary.

042. Special conditions

Amendments or special conditions are agreed by all parties: regarding the offset of rental monies from Defendant to Lessee; the supply of a building contract with amendments for $16,060.00; a Lessor deposit of $4,015.00, and a current set of structural plans.

043. Carefully peruse

Mr Grant's lawyer informs the Lawyer that he does not agree with several paragraphs of the new building contract regarding the disputed interpretation of the words "owner" and "builder" while the Agent is instructed to very carefully peruse Mr Grant's newly submitted contract.

c 2. Council patience

The Defendant and Lessee are in dispute over compliance issues which results in the lockout but is countered by a Council order for restoration after which a new contract for rectification work is signed and the Defendant is warned by its Agentthat the Council might lose its patience with him.

044. Dangerous inadequacy

The Lawyer informs Mr Grant that he is in breach of the Lease for failure to undertake insurance cover after which Mr Grant's lawyer counters that, re Emergency Order of Council i.e. the repair of dangerous structural inadequacy, the Defendant has not complied within 28 days of notice.

045. Breach of the Lease

The Lawyer informs Mr Grant’s lawyer the Defendant denies that: the allegations of the Lessee re Emergency of Council applies and thus is not being admitted; that the building is unsafe and unusable, and that he is in breach of the Lease.

046. Lock out 2: Grant

The Agent locks out Mr Grant and re-enters and re-possesses the building while the Lawyer files an application to the Administrative Decision Tribunal which, after a successful counter application by the Lessee, orders a restoration of access to Mr Grant until a further hearing is scheduled.

047. Mutual releases

Lawyers for both parties fail to reach a settlement as the Lawyer insists that Mr Grant pays all rent and monies due and payable under the Lease up to 28 April 2008 with the Lease being surrendered and mutual releases being given by both parties.

048. New contract

The Lawyer offers a settlement with Mr Grant to enter into a Building Contract for the work required to rectify the defective Wall with Mr Grant to spend at least $75,000.00 on this plus being given a month's free rent with all work being subject to the satisfaction of Council 

049. Bond cashed

The Defendant asks his Agent to cash the bond cheque (approx. $5,000.00) and deposit into the Defendant's bank account minus expenses. 

050. A better tenant

The Defendant asks his Agent to re-rent the property and hopefully get a better tenant leaving the Wall untouched as he intends to re-build the property later adding that PJ's report stated that the Wall was not in imminent danger of collapse and thus not dangerous.

051.  Any worse without any agent

The Defendant advises his Agent: the good news about the wall; hopes that PJ's report can be used with Council to avoid the repair of the wall for the time being; that the next tenant is different, and he wonders whether things would have been any worse without any agent at all.

052. Council will lose its patience

The Lawyer informs the Defendant that Council still requires him to undertake the rectification as soon as possible and that Council will lose its patience with him for not attending to it within a reasonable period of time and thus be in default of the Emergency Order.

c 3. Down Under

The Defendant refrain from sending PJ's report to Council to avoid the order, the Agent believes the building to be derelict, yet a compliance officer determines that the down under underpinning is not required as the cracking is more aesthetic than structural and the Order is being lifted.

053. Lessee withdraws

Mr Grant submits an invoice for $6,659.54  to the Defendant for professional services incurred in taking possession of the property (urgent advice, police attendance etc.) but subsequently withdraws the matter before the tribunal.

054. Avoid repair

The Defendant informs the Agent that they should not send the PJ's report to Council until the Lawyer returns from vacation and peruses it then they can discuss it among themselves and possibly avoid the repair of the Wall for the time being.

055. Prospective lessee

A prospective lessee inquires of Council regarding the Order but a compliance officer, Mr Ray Kehlet, is aware that the Defendant has had another structural engineer advising that the building does not need underpinning.

056. A slap in the face

The Defendants inform a different estate agent, Mr Carino, that they wish to dump their current 'slack' Agent who by return email states that, as he believes he has been diligent in the execution of his duties, this is like 'a slap in the face'.

057.  Derelict property

The Agent further states that: business people will not spend money on a run-down building with no concessions given especially with an unresolved Order in place; the property is falling into dereliction with the prospect of squatters, and is affecting the good image of the neighbourhood.

058. Tenancy applications

The Applications are addressed to the Agent their proposed usage being for a café or a convenience store.

059. Down Under

In December 2001, a compliance officer, inspects the premises with the Defendant and on PJ's advice determines that no down under underpinning is required as the cracking is more aesthetic than structural so therefore Council will no longer pursue the structural upgrade of the building.

My Australia

In 1998 the Plaintiff's family began the proces of emigrating to Australiaestablishing Morden Paint, entering a Deed in 2001 on 39 GPR which has structural problems that resulted with the parties having a dispute and the constracting of three steel frames to support the Wal in 2004l.

D. The Deed

In 1998 the Plaintiff's family and his business partner family are in the proces of emigrating to Australia under the Independent Executive Scheme and they establish Morden Paint winning several awards, yet by 2001 the Plaintiff meets the Defendant and later their Deed is registered.

d 1. Morden Paint

In 1998 the Plaintiff and his business partner famalies, emigrate on the Independent Executive Scheme, establishing Morden Paint and winning several awards and plan to open a restaurant and home for the Plaintiff's family at 39 GPR.

060. The plaintiffs

The Plaintiffs are in their mid fifties, become acquainted as teenagers, go on to manage a pub together on university campus and get married in 1991 with the Plaintiff graduating from Beer Sheba University in Economics and Management in 1988. 

061. Entrepreneurship

After this period, the couple travel through Canada and the USA then return to Israel where the Plaintiffs studies Entrepreneurship and Start-Up Management at Tefen College.

061. Pioneer Concrete, Israel

From 1993 to 1995, the Plaintiff works as a manager at an Australien company Pioneer Concrete Israel, while his wife, who also has expertise in marketing and managing small business, works in the hospitality industry as a restaurant manager.

062. Dovlar Material Systems

In 1995, the Plaintiff becomes general manager of Dovlar Material Systems specialising in supplying the building trade and in 1999 secures contracts for completing some of the biggest special paint finishes and acoustic projects in Israel.

063. The business partner

In 1996, the Plaintiff meets his business partner Mr Evos Primost, a talented draughtsman, designer, artist, painter and colourist and forms a relationship with the Plaintiff who in turn shares his knowledge of special paint finishes.

064. Emigration to Australia

In March 1998, the men form an equal partnership, finalise a concept and business plan and decide that Sydney, Australia would offer the best opportunity to utilise their combined expertise after which they were granted distribution rights by Spatula Stucchi (Italy) and Nadir(Israel).

065. Morden Paint Sydney Australia Pty Ltd

The company formed, Morden Paint 
Sydney Australia Pty Ltd ('MPSA') is to be a marketing platform to supply special paint finishes for prestige projects, sell and distribute imported paint finishes and provide training to trades people in the new techniques of MPSA finishes.

066. First move

In October 1998, Evos moves with his family from Israel to Fairfield, NSW, close to the house of his brother-in-law Alberto who was trained by Evos in special finishes in Italy in the early 90's and who is operating a business in the painting trade.

067. Mortlake showroom

In March 1999, business entities are set up under the umbrella trading name of MPSA after which premises are leased in Mortlake, Concord comprising of studio/showroom, two offices, reception and storage rooms and then in 2000 the business premises are moved to 136 Mitchell St. Glebe.

068. Winding up Israel

From 1999 to 2001, with the Plaintiff shuttling between Tel Aviv and Sydney but his family remaining in Israel as his wife delivers a baby daughter, who is a sister for his three year old son, the Plaintiff winds up his and his partner's business and personal affairs.

069. Between Israel to Australia

Over this period, in the first three trips, the Plaintiff remains and works in Sydney for a total of five months to June 6 with Evos handling day-to-day operations and from Israel the Plaintiff monitors the business through daily phone and fax communication. 

070. Park Hyatt Hotel

In 1999-2000, Morden Paint completes several prestigious projects such as the lobby and restaurant of the Park Hyatt Hotel at the Rocks and becomes recognized as a leading special paint company by designers, architects and the painting trade. 

071. Awards for Excellence

In 2000, Morden Paint completes the Ledgerwood Residence Project that won the Master Painter Association Award for Excellence in Decorative Finishes and in June, 1999 the Plaintiff comes to Sydney for the first time for a two-week visit and stays near the company premises.

072. Darling Harbor

During this visit Morden Paint takes part in Inter Build an annual exhibition at the Darling Harbour Exhibition Centre and in May 2000 the Plaintiff returns to Sydney for the second time for a period of two months and on departure kneels and kisses the terminal floor.

073. Award win

During the period from 22 March to 25 May 2001, the Plaintiff briefly returns to Sydney for two months residing at the new MP premises in Glebe while in 2001 the company wins the Master Painters Association award for Excellence in Decorative finishes for La Vigna Restaurant.

074. Morden Paint

In 2001, MPSA completes the Arnott Residence Project that later wins both the Master Painters Association Award for the Project of Year in NSW and the Decorative Material Supplied to the Project of the Year.

d 2. La Porte (the gate/port)

After the Plaintiff returns to Sydney for a fourth time and intends to relocate his family Mr Primost designs the La Porte restaurant while the Plaintiff plans to resides with his family on the first floor but the Defendant stalls re the Wall opening to the Park with PJ's engineering reports.

075. Final landing in Australia

In December 2001, the Plaintiff returns to Sydney for a fourth time with the intention of completing, within four months, the preparations for the imminent relocation of his family after August 2002 and therefore plans a return to Israel by April 2002. December 1 20

076. Fateful meeting

At this time the Plaintiff accidentally meets the Defendant while passing 39 GPR, a property which seems ideal for the purpose of a restaurant and residence for his family on the first floor, with the Defendant stating that he lives '10,000 miles' away and wants a good tenant and peace of mind.

077. Too good to be true

With the Plaintiff enthusiastically sharing his plans with him, he declares that: the restaurant would be a perfect vehicle for his wife to utilise her skills; the first floor is ideal to temporarily house his family and would, with the frontage and sidewall, perfectly showcase MPSA's finishes.

078. The lucky country

After a friendly rapport was established, the terms of the Lease are negotiated: five by three years at $3,684 adjusted for CPI pa; the Plaintiff to manage renovations with Defendant to sign off, and the two parties celebrate the lucky country and their agreement at the next door 
restaurant.

079. A friendly relationship

From 7 December 2001 to 3 January 2002, the Plaintiff meet the Defendant eight times during which Evos, who had owned a restaurant in Thailand, ventures the notion of opening a Moroccan restaurant as he knows that the Second Plaintiff is of Jewish Moroccan descent.

080. Better meeting place

As there is a bad smell coming from the ground floor and no chairs to sit on most meetings, usually of one to two hours duration and at the Defendants suggestion, occur at the MP studio which is a ten minute walk from 39 GPR.

081. Defendant impressed

With MPSA completing the Arnott Residence project and the studio is actively making product samples for display, several meetings occur between the partners and Defendant who seems impressed by the company and a good rapport is formed between the men.

082. Mutual pleasure

The Plaintiff deems the Defendant a pleasant and honest man to do business with which is reciprocated by the Defendant who extends an invitation to the Plaintiff and his family to visit and stay at his hotel on Leftkada Island, Greece.

083. Exclusive Rights for 15 years

Before the Core Lease Agreement is finalised, the Defendant is found to be negotiating with a prospective tenant who wants to lease the ground floor only as a convenience store.

084. Conditions requested

Having had some experience in negotiating commercial leases as in Mortlake and Mitchell St., Glebe plus other commercial and legal matters in regard to MP, the Plaintiff requests that the Defendant agree to certain conditions in view of the big investment involved.

085. Defendant agreeable

With the main conditions of the Core Lease Agreement mutually acceptable, the Defendant agrees to the Plaintiff's requests that he would pay council rates, allow the sub-lease of the premises, allow the option to sell the business and require only the provision of public liability.

086. 3x5 years, $3,684.00 monthly

With the Defendant declaring that as he resides permanently on Leftkada Island,Greece as a hotelier he is seeking a long-term tenant who will give him peace of mind, the Plaintiff reiterates that because of the large investment involved he requires a lease of at least fifteen years.

087. CPI annually and up 8% every 5 years

Agreeing that rent increases are linked to the CPI and between the two renewals of the options, both parties also agree to avoid the process of market valuation and to limit the five yearly rent increases to a future agreed percentage with a maximum of up to eight percent.

088. Free hand in renovations

With the Defendant residing in Greece not visiting Australia for ten years and the Plaintiff successfully operating in the building industry both parties agree that the Plaintiff would manage design and renovations with the Defendant having sign-off rights all subject to Council permission.

089. Reduced rent for six months

Estimating that it would take six months to complete a cafe/restaurant renovation and fit-out of the ground floor, both parties agree to a rental reduction for the first six months i.e. first three month's deposit, with the Plaintiff to refund fifty percent of the discount over the next two years.

090. Roof replacement

The parties agree that the Defendant would provide $5000.00 for the roof rectification but as this is not urgent plus the fact of the reduced rent, it is agreed to postpone work on the roof for six months from the date of the commencement of the Lease.

091. Plans from 1990

In 1989, the Defendant lodges a B.A. for the addition of a balcony and rear staircase to the first floor residence and the conversion of the upper rear room to a kitchen/dining room informing the Plaintiff that the work was not performed post-D.A. because he leased the premises instead.

092. Defendant offers $25,000.00

After informing the Plaintiff that he had also bought a hotel in Leftkada Island, Greece, he gives the Plaintiff the plan and drawings seeming very enthusiastic about the project offering $25,000.00 toward the completion of a similar plan in the future.

093. Johnston's report from 2001

The Defendant informs the Plaintiff that he commissioned the above report to test the structural feasibility of making a door/opening in the sidewall as the then tenant had lodged a similar D.A. which Council had rejected and that this tenant had sub-let and owed back rent.

094. Defendant skeptical

After stating that the same engineer who rebuilt the front wall did not find a problem making door openings, the Defendant is skeptical about getting D.A. as the Wall is adjacent to a public park but the Plaintiff would like to perform the work, on approval, for a two-and-a-half year lease extension.

095. Other documents?

Around 3 January 2002, the Defendant carries meetings with a plastic bag containing a sheaf of documents and sorting through them give the Plaintiff two only and being asked for any more that might be relevant replies that only these two are relevant reflecting his ideas for the renovations.

096. The lucky country

After the first and second Defendants invite the Plaintiff and Mr Primost to a celebratory dinner at the restaurant 41 GPR, the Plaintiff gives the Defendant $3,188.00 in cash being for three months reduced rent plus $300 to defray legal costs.

097. Contract agreement

With the Defendant providing the Plaintiff with a receipt and premises keys, it is agreed that the Defendant's lawyer will draw up the lease contract commensurate with the Core Lease Agreement after which the Plaintiff is overjoyed and declares that: "It is for real; it is the Lucky Country".

098. Timbara 
restaurant

As the premises had been left vacant for months and vandalised, the Defendant is proceeding with relevant insurance claims while also collating rectification quotes for roofing, drainage and the rebuilding of the back fence.

099. Exterior

In December 2001, the Defendant informs the Plaintiff that before he left for Greece in 1990 he had rebuilt the front wall, which still displayed the former title "Timbara", due to a twisted wooden beam with the sidewall having a bend and a few patched-over cracks.

100. Interior

While it was evident that the ground floor had been a cafe/restaurant and the upstairs a residence and possibly an office, the interior had been neglected displaying broken windows, holes in the walls and floor, fire damaged carpets, loose and damaged stairs, graffiti and a bad smell.

101. Back yard and 
Roof replacement

The entire rear area including the yard to the back fence was in poor condition while the toilet, storage room and back yard fence were in a particularly appalling state. 
As the roof does not have insulation, the Defendant receives a quote for replacing the roof and supplying insulation.

102. Rebuild fence

On or around the 27 December 2001, The Defendant employs two tradesmen to rebuild the fence on the north side of the back yard with the Plaintiff being often present when the work is performed.

103. Drains

The Defendant supplies the Plaintiff with the phone number of a plumber and during three of four visits from March to April 2002, supervises the plumbing with the Defendant being invoiced directly for the work.

104. Grease trap

Having agreed that the Plaintiff would pay for grease trap servicing, cleaning and maintenance, in April 2002 he completes the job and the lingering bad smell in the kitchen area is only attributed to the lack of constant water flow but the trap is found to be quite empty.

105. Grease trap and vent

The kitchen cooking vent appears to be in good state with the Plaintiff being sure that the Defendant tells him that he had paid a lot of money for the vent and grease trap, perhaps $20,000.00

106. The renovations

From January 2002, all the focus and efforts of MPSA were diverted to 39 GPR to rush to complete the overall plan of renovation and fit-out. 
This plan comprised of: a first-floor front living room and three bedrooms plus a Moroccan restaurant on the ground floor.

107. Budget estimate

The Plaintiff estimates the budget for renovations, fit-out and furnishing cost of the dining area and residence between $90,000.00 and $100,000.00 including a twenty-five percent discount using his company's capabilities and also twenty-five to thirty percent of the cost in barter to MP.

108. Mr Pasqualle

MPSA submits a tender of $9,405.00 to Lamio Pty. Ltd., a medium-sized construction company, owned by Mr Pasqualle for the application of Morden Paint Crystal in three bathrooms in an on-going project in Queenscliff, NSW.

109. Reciprocal deal

As Mr Pasqualle is a reputable professional builder with over forty years experience in the trade, MP enters into a flexible reciprocal arrangement with him whereby MPSA will offer their services gratis for his assistance and advice in the 39 GPR renovations.

110. Olive tree

After his initial visit to the 39 GPR site Mr Pasqualle agrees with the Plaintiff that the tree adjacent to the park is a matter of concern and agrees to write a letter attesting to this which the Plaintiff then sends to Council along with the 25 June 2001 report of PJ.

111. F
amily on the first floor

At the end of January 2002, Evos, who is an ex-draughtsman and talented artist, drafts a conceptual design 'dream plan' of the restaurant occupying both floors but this is found to be a long-range option as the Plaintiff plans to temporarily house his family on the first floor.

112. Ambition sketches

As Council would not have approved many aspects of the plans, there is the possibility of later joining the first floor residence to the cafe/restaurant but the sketches merely reflect future ambitions and illustrate our dreams and to learn from valuable feedback.

113. Calling him Michelangelo

On 25 February, the Defendant seems extremely pleased with Evos's plans calling him a Michelangelo and, as no doubt the Plaintiff had engaged a structural engineer/builder in the process, if Council were satisfied then he would be happy to sign off on the work.

114. Not heritage listed

In mid-February 2002, Evos sends the existing plans as well as the dream plan sketches to Council Planner, Bruce Lay, and receives in turn a study paper showing that 39 GPR was built in the early 1880's and that it is not heritage listed.

115. Hiring PJ

After locating Phillip Johnston's contact details in his report of 25 June 2001, the Plaintiff decides to hire him and asks about general structural issues plus future options and gives the dream sketches quizzing him on the structural feasibility of the changes inherent in the plans.

116. Bend location incorrect

Mr Johnston then tells the partners that the location of the bend in the sidewall is not correct as per his report of June 2001; that the width of the proposed sidewall door opening should be reduced and that a first floor internal portal steel frame would have to be built for the sidewall.

117. Structural possibilities

After the Plaintiff asks him about structural possibilities of the internal support wall and cracks in the back wall, PJ informs him that the front wall was rebuilt because of a twisted wooden beam and that it was checked and found satisfactory for wind loading.

118. I have nothing to hide

On 16 January 2001, around ten days after the Defendant leaves for Greece, the Plaintiff receives a Landlord Disclosure Statement and a Draft Lease in which the premises are stipulated as being a shop in a retail shopping centre.

119. Lease received

With the Plaintiff in long discussions and negotiations of over one hundred international phone calls and faxes to and from Greece, it takes four months to finalise a Lease Contract and another four months to receive a registered Lease on 13 September, 2002.

120. Defendant stalling

Over this period the Plaintiff sends the Defendant, on the basis of legal advice, two letters outlining his concerns that were in the draft lease as he felt that the Defendant was hiding something asking him whether he was telling him all of the facts of the matter.

121. Mutual respect

The Defendant replies that he has nothing to hide and can be trusted after which, despite their differing opinions and subsequent delays, good relations are maintained and negotiations held in mutual respect.

122. Arnott's project

In January 2002, MPSA is in the final stages of a project at Jeremy Arnott’s residence, a project that later won the Master Painter Association’s Project of the Year Award while some of the tradesmen from the Arnott’s project went on to work at 39 G.P.R.

123. La Porte (the gate/port)

The preparation for the 'La Porte' restaurant and the first floor residence takes place parallel to the execution of the premises' renovations and during this time two American back-packing professional photographers,Jack and Janina, work part-time for the Plaintiff.

d 3. The Deed

After attempting to induce the Plaintiff to sign a Lease contrary to conditions agreed in the Core Agreement, the Defendant obfuscates by insisting that unnecessary structural changes be a matter of trust and by September 2001 the Deed is registered.

124. Equipment suppliers

Taking photos of several MP's projects and studio plus the interior and exterior of 39 G.P.R., Janina also canvasses food and beverage equipment suppliers and, on leaving, Mr Gilad Lesham takes over from her.

125. Mr Gilad Lesham

In March 2002, the Plaintiff begins to build a working relationship with him utilising his experience as a professional sound technician with expertise in the hospitality industry and in July 2002 he moves into the first-floor residence of 39 G.P.R. with his girlfriend, Matti.

126. Mr Lesham vacates 39 GPR

His function is to oversee and manage the fit-out and set-up of the cafe/restaurant launch until the arrival of the Plaintiff's family but in mid-August 2002 Gilad and Matti move to the MP studio with the first-floor residence being occupied for less than five weeks.

127. Chef hired

Mr Edo Lev, who is a close friend of Gilad, is studying at a prestigious catering college in Sydney and is ideal as Chef for the 39 GPR project which he accepts and in May 2002 serves a Moroccan dinner at MP for friends and tradesmen of the project.

128. Lease obfuscation

With the permitted usages of the property being for a ground floor takeaway outlet and first floor residence, the Defendant and his Lawyer urge the Plaintiff to sign a Lease which does not reflect usages agreed in the Core Lease Agreement and are more relevant to a shopping centre lease.

129. More Lease obfuscation

Knowing that the Plaintiff requires a clause inserted that allows for the usage of a ground floor cafe/restaurant and first floor residence for his family for the first two to three years, the Defendant presents a Draft Lease that permits a cafe/restaurant but omits a residential component.

130. Defendant refuses

To resolve the situation and gain the Defendant's permission to house his family as per the Core Agreement,  the Plaintiff suggests a first floor boutique hotel but the Defendant refuses because of tax liabilities and the necessity for an extra separate residential lease.

131. Roof on trust

In December 2001, the Defendant receives a quote for roof replacement and insulation of $5,000.00 and agrees to defer payment for it for six months but although it was a clause of the Core Agreement did not want to include it in the Lease insisting on making it a matter of trust.

132. Free hand in renovations

With the Defendant residing in Greece and due to the Plaintiff's building experience plus MP's design capabilities, the parties agree that the plaintiff would be responsible for and have a free hand in the overall process of renovation and design without the Defendant's consent.

133. Structural B.A. and D.A.

During negotiations of the Core Lease Agreement, the Defendant raises concerns about the authorisation of structural changes  with the parties in agreement and understanding that any structural changes would need Defendant consent and Council BA and DA compliance.

134. Compliance unnecessary

The only structural changes discussed in the Core Agreement pertained to the Defendant's notion of adding a balcony to the first floor residence, opening the Wall and rebuilding a new backyard toilet with none of the Plaintiff's immediate renovation plans needing Council compliance.

135. Insurance money

In Core Lease Agreement negotiations, the parties agree that on approval of the pending insurance claim for prior damage to the premises that any claim payout would accrue to the Plaintiff being the Defendant's monetary contribution toward the renovations.

136. Insurance claim

In December 2001, with the Defendant informing the Plaintiff that as the premises were not occupied during the cause of damage the GIO might not approve the claim, provides the Plaintiff with contact details of O'Brien Glass and the GIO allowing him to continue the claim process.

137. Loss adjusters

The Plaintiff contacts Mr Peter Kemble of GIO who provides the phone number of Mrs Dawn Burgess of Robertson & Co, Chartered Loss Adjusters who advises him of a problem with the claim in regard to the carpet.

138. Insurance payout insufficient

Shortly after, MP provides her with a mutually acceptable quotation after which the Defendant, without consulting the Plaintiff, accepts the GIO payout of $4,130.00 which did not include the cost of carpet and shop window replacement.

139. Insurance payment delayed

The Plaintiff's agreed portion of the GIO payout of $4,130.00 is delayed by the Defendant's claim that he had run out of cheques then send the cheque to the wrong address but finally he accepts the insurance payout in lieu of rent.

140. Structural issues

With complete understanding that the Plaintiff wants to open a food outlet as soon as possible and reside with his family on the first floor, the Defendant is raising irrelevant issues in regard to the D.A., structural engineering problems, Council approval and Owner consent.

141. Mutual agreement

In discussion with the Plaintiff it is mutually understood and agreed that changes involving Council approval and the Defendant's consent and $25,000.00 financial contribution and Lease extension of 2.5 years, would be an opening in the Wall and an addition of a backyard balcony/deck.

142. Plaintiff overwhelmed

With the Defendant reiterating issues contrary to the above mentioned understanding in his lengthy faxes along with other important matters, the Plaintiff does not pay particular attention to the matter because renovation problems are uppermost in his mind.

143. Legal fees

Before the Defendant departs for Greece, the Plaintiff pays him $300 plus GST towards legal preparation of the Lease and is billed for half of the legal fees regardless without consideration of the prior contribution but he chooses not to argue concentrating on more pressing issues instead.

144. Insurance payout 

The Defendant informs the Plaintiff that on receiving a GIO insurance payout of $4,130.00 he is deducting the August rent of $3,575.00 and is mailing the balance of $555.00 in satisfaction of the Plaintiff's prior request and the GIO regulation of passing on payouts to tenants.

145. Silly mistake

On 25 September 2002,  the Defendant informs the Plaintiff that due to his (the Defendant) "silly mistake" in sending the insurance refund cheque of $555.00 to the 13 Mitchell Street address, the letter returned to him in Greece.

146. The Deed

On 13 September 2001, the Lawyer sends the Plaintiffs the original registered Lease no. 8898392  AA 1-38, commencing on 5 January 2002 and terminating on 4 January 2007 with an option to renew for a period of five years plus five years.

E. I Beg You

With the Plaintiff informing the Defendant about structural problems a structural engineer (Bekker) deems the building unsafe but the Defendant uses only PJ's report with the Plaintiff begging to resolve their matter and the Defendant eventually saying to the Plaintifft that he will 'finish' him.

e 1. Danger of collapse

After the Plaintiff informs the Defendant about inherent structural problems the Lease is signed but more problems become evident but PJ recommends only filling and rendering work after which an examining structural engineer, Paul Bekker, deems the building unsafe. 

147. The Olive tree

From February to August 2002, the Plaintiff has several meetings with officials of the Council Parks Department concerning an olive tree and the adjacent park after which they grant approval for its removal which occurs six months later.

148. Olive tree to be removed

The Plaintiff informs the Defendant about structural problems with the back and cross walls; that he is replacing seventy percent of the ceiling to the legally required fire-proof standard and that he is replacing the wiring in the electrical circuits in the relevant areas.

149. Lease extension request

After a meeting with the Lawyer in which the above problems are discussed, the Plaintiff asks the Defendant, in light of the extra work and expense incurred, to consider a five year extension of the Lease reiterating his good intentions and best efforts in regard to the project.

150. Defendant reverses decision

On or around 26 May 2002, Evos has a telephone conversation in which the Defendant agrees to their request to extend the Lease but a few days later changes his mind about the Lease extension request.

151. First floor renovations

In mid January 2002, Evos and Sassa, a MPSA employee, start renovating the first floor and backyard and in the following weeks the partners become familiar with the work-site in general with the pace of renovations increasing from March to July 2002.

152. First small crack

From January to August 2002, the gradual revelation of structural problems is concomitant with the progress of interior renovations with the first problem becoming evident at the time of the Defendant's visit to Sydney being a small crack in the back wall above the ground floor back door.

153. Crack in the common wall

Soon after the Plaintiff signs the Lease he notices raised ground around the tree adjacent to the Wall and, after starting the first floor renovations, he discovers loose bricks plus a five centimeter wide crack in the common wall from floor to ceiling.

154. More cracks

As the interior renovation progress several more cracks and other structural defects are discovered impeding further work with many locations with MP finishes having to be removed pending resurfacing at significant cost to the Plaintiff.

155. The renovations include:

Replacing part of the electrical/lighting system.
Rebuilding the first floor bathroom and toilet.
Installing smoke alarms.
Painting of the interior (mainly with Morden Paint special finishes).
Removing of carpet from the first floor and sanding and painting the wooden floor.
Replacing ceilings with gyprock red to the requirements of fire resistance regulations.
Building fire proof gyprock partition between 39 to 41 GPR from the ceiling of the ground floor to the roof in line of the common wall.
Fixing doors.
Renovating the back yard toilet.
Reinforcing the stairs.

156. PJ's surprise

After scraping off loose render and finding previously hidden large cracks, PJ is invited back to offer a second opinion and is surprised by cracks and loose masonry in the common wall close to the front wall which were not evident in 1990 as the wall had been covered.

157. PJ recommends filling and rendering

During this visit PJ advises filling and rendering the common wall crack, which was completed in June 2002, and the Plaintiff allays PJ's concern re any structural changes being made and possible change of usage, by denying any such intention.

158. Defects exposed

During renovations seventy percent of the ceiling on both floors are removed due to non-compliance with fire regulations re dangerous electrical circuitry while in removing aluminium studs holding Masonite sheeting, portions of interior brick walls over two meters high are exposed.

159. More cracks evident

After removing old thin render from this panel height to the ceiling and removing Masonite five centimeters from both sides of the front room, cracks above the existing opening in the back wall and ground floor internal cross wall becomes evident.

160. Partners seek advice

The partners seek advice on making the four door openings safe in these two walls while also widening the kitchen entrance and changing the location of the cross wall center door opening in a way that would allow a separate door to the first floor stairs.

161. Council BA needed

Two weeks after PJ's visit he supplies a detailed structural assessment with detailed drawings noting that the proposed door openings constitute structural changes which will not compromise the integrity of the building but Council BA must be sought and complied with first.

162. Not be advisable

In early June 2002, Mr Paul Bekker, who is Mr Pasqualle's structural engineer, visits and inspects the site and informs the Plaintiff that there are obvious, inherent structural problems and in his opinion it would not be advisable to open a shop/café/restaurant.

163. Second opinion

On receiving the structural report from PJ, the Plaintiff seeks a second opinion from Mr Bekker and Mr Pasqualle who advise inspection of the foundations under the ground floor which subsequently reveal tree root invasion.

164. Structural problems

On 19 July 2002, the partners show PJ tree roots found, after digging a 60 cm hole, at the junction of the cross and side walls in the large room plus other interior structural problems and a big crack at the junction of the common and back walls.

165. Cracks filled

After PJ advises the partners to fill the crack with concrete as per the front wall, mr Primost fills the crack by designing a feature to appear that two separate walls are connected by concrete belts.

166. PJ terminates further advice

After the Plaintiff seeks advice re the removal of the non-weight bearing first floor hallway wall as a non-structural change, Mr Johnston gives his reluctant permission but later sends the Plaintiff a letter terminating any further advice and a copy of a letter sent to Council Building Department.


167. The first Floor

The evidence of structural defects is such that the wooden floor's severe slope is at least 200 mm higher at the front than at the rear plus a severe slope of 130 mm from the Wall west to the common wall.

168. Inadequate supporting joists

Loose joists offer insufficient support with some of the wooden joists that are supporting the floor loose in the wall because of insufficient filling material plus the wooden floor is not sufficiently strong enough to support heavy weights mainly because of the distance between the joists.

169. Back Wall - North, 5 m long, 8 m high and 3 openings

In regard to the back wall, there are several large cracks evident some about 4 cm wide, which are clearly, externally visible from both sides of the wall and which extend from both ends of the wooden lintel above the doorway.

170. Common Wall - West, 20 m long, 8 m high

At the junction of the south front and common walls there is found a disconnected gap of 5 cm with completely loose bricks which has created a clearly visible vertical crack from floor to ceiling being filled with concrete and rendered on the advice of PJ.

171. Vertical crack

At the building's rear is found a vertical crack at the junction of the north back and common walls separating the rear section from the main building which was also filled with concrete and rendered on Mr Johnston's advice.

172. Front Wall - South, 5 m long, 8 m high, 1 shop facade

The front wall is found to be unaligned with the adjoining property, 41 GPR, whose front wall leans outwards to the street and is tied with metal plates and bolts from the outside to bolster structural support.

173. Sidewall - East, 16 m long, 8 m high, 3 windows

This wall has extensive cracking of about 6 to 8 metres vertically from base to roof and from 3-50 mm in width but, due to filling and painting, are more visible from the interior while the biggest cracks are found around the fireplace especially beside ventilation ducts and adjoining cross wall.

174. Bend and bowing

A bend and bowing in the wall is found 4.5 metres from the building front which extends vertically directly to the roof while also extending horizontally outside and inside the building boundary line of the Wall.

175. Encroachment to the east

Around the bend and the bowing the wall encroaches on the boundary line of the building line to the east by at least 14 cm, and t
he lower left side of the fireplace has a 80 cm gap in the brickwork which the Plaintiff repairs as an emergency precaution.

176. Cutting for electrical wiring

The wall has a cutting of about 80 cm wide and 10 cm deep in the brick that was used for electrical wiring which extends horizontally along the Wall to the cross wall and which also rises vertically to the ceiling of the ground floor.

177. Lack of mortar

Mortar is missing in the interior walls while on the outside there is no filler to protect the mortar from water penetration, and t
he cross wall has two door openings with a loose metal lintel above one having missing bricks while the other opening having a wooden lintel.

178. Cross wall cracks

There are three large cracks 2 to 6 cm wide in the cross wall; one crack runs from the metal lintel to the east wall; another crack extends from the end of the wooden lintel to the ceiling but a third and largest crack in the cross wall extends from the base of the wall to the ceiling.

179. Roots penetrate sidewall

There is a double-trunked (40 cm diameter) five meter high tree growing directly adjacent, within 90 cm, to the Wall with its roots raising the ground around its base and which Council removes in early 2003 at the Plaintiff's request.

180. Roots penetrate foundations

With the roots of this tree penetrating the Wall's foundations the Plaintiff digs an interior trench adjacent and to the full depth of the footings which reveals a 38 cm root penetrating between and under the footing stones and a root off-shoot has penetrated the fireplace foundation.

181. Plaintiff requests file

On 1 August 2002, the Plaintiff submits a request to Council to see the building file and before leaving for Israel for a family reunion updates the Defendant on work site progress and leaves Mr Lesham to supervise his business affairs during his absence.


182. Evacuation 

Following the adverse structural report that stated a danger of collapse, the Plaintiff deems the building unsafe and in August 2002 instructs Gilad, Matti and Mrs Sendler, another employee of MP, to vacate one of the two rooms they had occupied for the previous five to six weeks.

183. Danger of collapse

On October 30,2002 Mr Bekker, a structural engineer, submits a report attesting to the fact that: the Wall has extensive cracking; tree roots are projecting under footing stones; the Wall is in danger of collapse and recommends the Wall be demolished and new footings installed.

e 2. D.A submission 

The 2000 Emergency Order resurfaces reinforcing the need for a comprehensive DA while the Plaintiff presents PJ with Bekker's report but the Defendant insists on using  PJ's report and informs Council about the Plaintiff's alleged unauthorised renovations.

184. Comprehensive DA needed

In September 2002, Gilad, on reviewing the building file, finds the 2000 Council Order and informs the Plaintiff, still in Israel, who then appreciates that the ramifications of the structural problems will involve a comprehensive D.A., instructs Gilad to tender for quotes from architects.

185. Pre D.A. meetings

The partners with the architect have pre-D.A. meetings with the Council Planning Department requesting, among other things, approval for replacing the Wall and after this the Plaintiff sends the plan and the statement of environmental impact to the Defendant to sign.

186. Rebuild on new footing

With the Defendant and Council requesting a second engineering opinion re proposed work under the D.A., the partners engage an acquaintance of Gilad who owns a smaller company than Mr Bekker.

187. Defendant insists on PJ

After noting strenuous objections from the Plaintiff that he had lost confidence in PJ's ability and competence, the Defendant insists on sending him to investigate and proceeds to dig two trenches adjacent to the Wall's foundation and a tree root found under the ground floor.


188. Severe structural problems

From January to April 2003, the Plaintiff engages in many long telephone discussions and arguments with the Defendant in attempts to convince him as to the severe structural problems and that Mr Vince, the Parks Manager, will confirm that Council has tree root damage insurance.

189. Illegal building works

For a lease extension to twenty years and a few months free rent, the Plaintiff informs the Defendant that he would carry out the rectification work himself but is rebuffed the reason being that the Plaintiff's work so far is illegal making the Wall unaesthetic.

190. Council compensation

On comparing the Johnston and Bekker reports, the Defendant states that the Bekker report seems very superficial and wonders why the Plaintiff insists that there are structural problems and whether the whole exercise was to obtain financial compensation from Council.

191.  Without approval

With the Plaintiff sending him images of the structural problems and also faxing Mr Bekker's report, the Defendant raises his concern with Council regarding the carrying out of work on his property without his or Council's approval.

192. Sydney City Council

Due to the redrawing of local government boundaries from 8 May 2003, the 
Sydney City Council ("SCC") is now the consenting authority for the Plaintiff's D.A. previously lodged Leichhardt Council.

193. D.A submission

On April 17 2003 the Plaintiffs lodge a DA application for an estimated cost of $180,000.00 citing the need for structural rectification relating the to Wall, the benefit to the Glebe community of a Moroccan Restaurant, the seating of 34 patrons and a possible application for a liquor licence.

e 3. I beg you

After a Council Planning Officer reports that the Wall is unsafe the Defendant locks out the Plaintiff, withdraws consent for the DA and ignores Mr Bekker's second report then the Plaintiff begging the Defendant to resolve their matter and the Defendant saying that he will 'finish' him. 

194. Complete demolition

On June,2003 the Defendant writes to Council seeking recommendations re complete demolition and rebuilding or major structural alterations to create a separate shop from the residence to which the Council replies that due to 39 GPR's Heritage listing Council approval is unlikely.                                                
195. Partial Lock out

The Defendant rejects the Plaintiff's offer to resolve the dispute and after the stoppage of rental payment he changes the front door lock but leaves the back and rear door locks unchanged.

196. Wall is falling apart

The Council Planning Officer, Mr Greville, reports that the Wall is falling apart and a large tree that was recently removed severely damaged this Wall caused by its roots growing under and through foundation stones.

197. Withdrawal of consent

The Defendants inform the Plaintiff that their consent for the DA is withdrawn with the Defendant unsure as to why the Plaintiff wishes to continue with the application while, in the meantime, legal proceedings are proving to be expensive.

198. Proceedings are very expensive

On 17 July 2003, the Plaintiff receives a letter from solicitors Mackenzie Russell & Co, in response to his seeking legal advice, which emphasised that evidence of structural faults is relevant to the Defendant's deception as to the soundness of the structural state of the building.

199. Daylight shows through

PJ states that an unusual accident could bring down part of the Wall near the point of impact and seismic loading or heavy vehicular damage could cause a collapse of the whole wall.

200. Collapse could occur

On September ,2003 reports to the Plaintiff also referring to his October,2002 report, that to his dismay no repairs had been instigated on 39 GPR, the Wall is still in a precarious state,that the Wall is unsafe and needs immediate rectification, and collapse could occur at any time.

201. Plaintiff's tools confiscated

On 13 September 2003, with the Defendant ignoring the Plaintiff's request for the return of his work tools the Plaintiff approaches the Lawyer and in the letter of 16 September 2003, informs the Plaintiff that the request was made again but the Plaintiff's tools have not been returned to him.

202. I beg you

In October 2003, the Plaintiff meets the Defendant and tries to show him the serious nature of the structural problems begging him to resolve the issue after which the Defendant rebuffs him telling him to get on with his life and that he will finis the Plaintiff.

F. Three Steel Frames

With the Defendant ignoring Bekker's third report and surrendering the Lease,the Plaintiff is granted a caveat to prevent a new Lease and allowed to seek relief re forfeiture but is served with an AVO while Term 2 of the Order may be implemented and a D.A .is approved.

f 1. Emergency Order 2

The Defendant threatens to sue for damages, lodges a new DA, ignores Bekker's third report which stresses precarious structural conditions while the Plaintiff seeks a caveat to prevent Lease cancellation then Emergency Order 2 requires that temporary bracing be kept intact.

203. Defendant to sue

During a second meeting the Plaintiff reiterates that he will not give up or disappear to which the Defendant replies that he will sue for damages re the destruction of his shop and that he will 'finish' the Plaintiff.

204. Defendant's D.A.

The Defendant informs Council that he is taking all necessary steps to perform work on the building and that any matter regarding public safety is being addressed and 
on 4 February 2004, he lodges a new DA which does not fully address the structural problems of the building.

205. The wall be repaired

Mr Bekker’s third report states that it is essential that the Wall be cordoned off; that cracking is permanent and irreversible and that condition of the Wall be addressed prior to finalization of the proposal as its condition is very precarious.


206. Requires substantial support

The Defendant attaches structural engineer reports from PJ. and Mr Greville’s internal memo states that the SCC's Structural Engineer concluded that the Wall does require substantial support/bracing prior to any further works commencing.

207. As wall has dropped

The Defendant's builder finds a 120 mm slope in the first floor and advises that as the Wall has dropped it would be worth stabilizing it by joining to the new floor slab to prevent future movement and he asks PJ for an idea of steelworks needed to join the old wall to a new slab.

208. First caveat

On 16 January 2004, the Plaintiff is granted a caveat on the property as he still believes in his dream plan and is afraid that the Defendant will erase him from the title and sell or rent the building to another party.

209. Plaintiff seeks date of lapse

In mid March 2003, the Plaintiff goes to the NSW Office of Land and Titles to discover the lapsing date and was told that it was 26 March 2004 and, after requesting a viewing of the document at the office, was told it was against departmental regulations.

210. Summons

On 25 March 2004, on lodging the summons to the Supreme Court the Plaintiff informs the Duty Judge that he had leased the property for three by five years with the Defendant knowing that the building was unsafe and was told by an officer of Land and Titles that lapsing was next day, 26th.

211. First caveat lapsed

During the hearing the Lawyer informs the court that he 
was told by the Office of Land and Titles that the caveat had lapsed and the Judge is under the impression that the Plaintiff had placed the caveat soon after he had signed the contract instead of two years with the Plaintiff not being granted new leave to apply for a new caveat on equal terms.

212. Existing footing has settled

The Defendant forwards to the SCC PJ's report in respect of the Wall and the SCC specialist structural engineer finds that the existing foundation footings below the Wall appear to have settled and thus recommends the bracing and shoring of the Wall.

213. Emergency Order: 2 

There are two drafts of the Emergency Order the first being that the inspection report of the SCC structural engineer and town planner is the reason for the Order while the second draft states that temporary bracing must remain in place until a construction certificate is issued.

f 2. Apprehended Violence Order

The Defendant surrenders the Lease erroneously stipulating that the Plaintiff also intended to surrender it after which the Plaintiff is granted a caveat to prevent a new Lease but is served with an AVO  by the Defendant citing harassment.

214. PJ agrees with Bekker

On the day of issue of the second draft, PJ issues structural details that address the first two conditions with the final draft agreeing with the Bekker report that the Wall is structurally unstable and may collapse.

215. Police and fire brigade

On 8 April 2004, the Plaintiff with the front door locked but still legally entitled to enter the building, notices that rectification work might be being performed and w
hile inside the building, the Plaintiff discovers two Defendant's tradesman, who call the police and the fire brigade.

216. Lawful access

On 15 April 2004, the Plaintiff is informed by police that he had legal access to the property until the afternoon when he is give an updated document from the Department of Lands stating that he was no longer on the Lease.

217. Surrendering the Lease

On 15 April 2004, Mrs Voukelatous as Joint Defendant legally surrenders the Lease at the NSW Department of Lands with an incomplete declaration and on the same day lodges a request to the Registrar General stipulating that the Plaintiff had indicated an intention of surrendering the Lease

218. Second caveat

On 5 October 2004, after presenting new facts and interests, the Registrar General grants the Plaintiff a new caveat
who still wanted to execute his plans for 39 GPR after he had  previously informed the Defendant via faxes that he felt deceived and wanted a resolution of the dispute.

219. Plaintiff notifies Defendant

On 11 November 2004, the Plaintiff faxes the Defendant notifying him of the new caveat while on 29 October and 3 November he again faxes him with the letter he sent to SCC after the first Emergency Order in 2000 and the BSB engineer's report of February 2000.

220. Dispute can be resolved

In sending the faxes, as he did not have his telephone number, the Plaintiff wants the Defendant to realize that he is aware of his foreknowledge of the structural problems and that agreeable dispute resolution would be the optimal result for both parties.

221. Defendant's D.A.

On 6 December 2004, the Defendant lawfully displays at 39 GPR the DA in order to comply with the SCC Order which the Plaintiff maintains is merely interior work which is not addressing the serious and fundamental structural problems of the building.

222. Plaintiff served documents

On 6 December 2004, the court Duty master and the Lawyer serve the Plaintiff the following documents: an outline of applicant's submissions; Defendant's chronology; the Defendant's affidavit plus copies on Interim Occupation Certificate and Retail Lease Disclosure Statement.

223. Second caveat lapsed 

On 6 December 2004, the Acting Judge finds that, as the Registrar General of Land and Title had cancelled the Lease record, the caveat has lapsed which did not imply that the Plaintiff could not pursue his remedies at law, one of which was relief against forfeiture.

224. Statement of claim

On 8 December 2004, the Plaintiff seeks an order in the Supreme Court: to extend the operation of the caveat; relief against forfeiture; allow access of the Plaintiff's structural engineer; to prevent the Defendant removing Plaintiff's belongings;seek Defendant's consent for a new D.A. 

225. Apprehended Violence Order

On 10 December 2004, an Apprehended Violence Order is granted against the Plaintiff for harassment and verbal abuse by the Defendant which had resulted from the Plaintiff being notified by Glebe Police earlier on 23 November, 2004.

f 3. Three steel frames

With the Defendant accelerating cosmetic renovations, gaining SCC approval for implementation of Term 2 of the Order, DA approval being granted, Council structural engineer Mr Chaboud advising the construction of a barricade,PJ proposes 3 steel frames to provide lateral wall support.

226. Defendant complies

Knowing that the Plaintiff was going to keep seeking legal relief against forfeiture in the matter of 39 GPR, the Defendant begins to comply with safety issues outlined in the several requests of previous tenants and accelerates cosmetic renovations with a view to re-leasing the property.

227. Term 2 can be carried out

The structural details that are submitted to the SCC are in response to Term 1 of the Emergency Order and the Defendant is informed by Council that, as the work details specified in Term 1 of the Emergency Order are acceptable, Term 2 of the Order may be implemented.

228. Temporary bracing

With no alteration to the existing sandstone footing, all walls being on an equal footing and trenches being back-filled and firmly tamped, PJ, as 'structural engineer', issues a construction certificate and DA is approved to the Defendants with an order for temporary bracing the Wall.

229. Order Term 2

After Mr Chaboud, the Council structural engineer seems satisfied with work specifications of Term 1 of the Order, Term 2 may be implemented but the Plaintiff advises him that the Wall is in danger of collapse.

230. Danger to the public

Mr Chaboud advises that the structural design is acceptable but to allay any concerns a barricade should be erected with the distance being equivalent to the height of the Wall to decrease any danger to the public.

231. Equal footings

PJ who is subsequently discovered NOT to be a structural engineer informs the Defendant that in view of temporary bracing no alteration to existing sandstone footing is advisable as all walls in the building should be on equal footings and similar foundation material.

232. Three steel frames

On 22 November 2004 PJ informs the Defendant that proposed alterations should comprise a new concrete slab for the ground, removal of an internal cross wall and the provision of three steel frames to provide lateral support to the side walls.

Cause of action 1

The Defendant ambushes the plaintiff on the hearing date with an interim occupation certificate, a newly signed Lease by a tenant and his statement that his family intends to live on the first floor, all of which and more prevent the Plaintiff from being granted a relief against forfeiture

233. A new tenant

From a Council document it is discovered that the Defendant needs a new tenant and Lease but must first have an Occupation Certificate to block the Plaintiff's relief against forfeiture being granted but Council issues just an Interim Certificate on 9 May,2005.

234. Structural problems

From December 2004 the Defendant is carrying out work at 39 GPR in compliance with the Order but the work is in the building's interior which will not address the  fundamental structural problems of the building.

235. Continuation of proceedings

On 17 February 2005, the Registrar directs the Plaintiff to file and serve an amended summons by 3 march 2005 and that the Defendant is to file and serve a motion to dismiss by 10 march 2005 with the matter to be re-listed by 10 March 2005.

236. Properly engineered footing

On 13 May 2005, structural engineer Mr Paul Bekker issues a report stating that there is no evidence that rebuilding or underpinning has occurred and that the Wall is in danger of collapse and recommends that it be cordoned off and rectified immediately for public safety concerns.

237. Damaging tree roots

He reports that any repairs not addressing the fundamental defect of the Wall will be ineffective in providing stability and recommends demolition and rebuilding on solid footings below the effects of the intrusive,damaging tree roots.

238. Integrity and stability

He further recommends that if remedial work is not immediately instigated by the proprietor, Council should engage an independent consultant to check the integrity and stability of 39 and 41 GPR especially the eastern Wall in question.

239. Duty Master McLaughlin

On 13 May 2005 the Defendant's solicitor and Plaintiff appear before the Duty Master during which the Plaintiff is served with documents which take the Plaintiff who is unrepresented completely by surprise.

240. Defendant's documents

The documents include: a chronology of applicants'submissions;a Defendants affidavit with a copy of the Interim Occupation Certificate, a copy of Retail Lease Disclosure Statement plus four precedents in regard to relief against forfeiture.

241. New tenant signed

After presenting the Duty Master the interim occupation certificate and a signed Lease by a new tenant paying $1,000.00 per week, the Defendant claims he had done a lot of rectification work, lost a lot of money and wants to live on the first floor with his family.

242. Live on the first floor with his family 

The Defendant claimes that he had completed a lot of work and spent money and presented an Interim Occupation Certificate plus a newly signed Lease by a tenant and claimed he intended to live on the first floor with his family after which the Plaintiff was not granted relief against forfeiture.

243. Petition to dismiss

On 13 May 2005, Duty Master McLaughlin of the Supreme Court of NSW hears a petition of the Defendants represented by their barrister to dismiss the application of the Plaintiff who is unrepresented.

244. Relief against forfeiture

The Plaintiff is seeking a monetary expenditure of the Defendants in respect to renovations of 39 GPR, relief against forfeiture of his rights under the Lease,rent abatement and a claim for damages for a breach of the Lease terms.

245. Relief re the structures

The Master rules that unless the Plaintiff is able to establish an entitlement to an interest in 39 GPR he has no entitlement to relief re the structures of the property nor an abatement of rent under the Lease and has not offered to pay substantial rent arrears.

246. Unauthorised works

In determining the Plaintiff's claim for relief against forfeiture are the extensive and damaging extent of unauthorised works during the Plaintiff's occupation of the property and that these works in breach of the Lease would be taken into account in determining grounds for relief.

247. Irreparable breakdown

In regard to discretionary factors against granting relief, the Master notes the irreparable breakdown in relations between landlord and tenant in view of the AVO granted to the Defendants against the Plaintiff and the fact that third parties are involved in a new Lease negotiation.

248. No reasonable basis

The Master rules that there is no reasonable basis upon which the Plaintiff would be entitled to relief against forfeiture of his rights and therefore has no standing to claim monetary relief or abatement of his rent under the Lease.

249. Opportunity to test his claim

Even though the Defendants submit that there is no evidence which would entitle the Plaintiff to damages the Master rules that the Plaintiff should not be deprived of the opportunity to test his claim in another court and is not necessarily hopeless or doomed to failure.

250. Another affidavit

After dismissing a claim for damages re a company MPSA Pty. Ltd. involving the Plaintiff's wife in a cafe venture, the Master rules that the Plaintiff submit another affidavit to seek damages for which he feels entitled and the bases for such asserted entitlement.

251. Asserted entitlement

The Master gives the Plaintiff four weeks to 14 June 2005, to file and serve an affidavit with particularity and specificity the damages to which the Plaintiff asserts he is personally entitled and the bases for such asserted entitlement.

Cause of action 2

The sand stone foundation of 39 GPR was irrevocably damaged by the trees roots from the public Park, making the building unsafe to the public and unusable to the Plaintiff, until the construction of the three steel frames and the official and formal removal of the SCC's Emergency Order.

252. Many thanks Amanda

With several non-compliance issues with fire safety unresolved, namely, exit signs, fire doors, fire retardant paint, smoke alarms, fire rated gyp rock and records of missed inspection, the Defendant is finally granted an Interim Certificate which is later re-issued due to a typing error.

253. Defendant granted occupation certificate

With the Plaintiff not being granted relief against forfeiture, the Defendant is granted an interim occupation certificate, which after a typing error, has to be re-issued and after a site inspection Messrs Harding and Lim from SCC are satisfied.

254. Plaintiff seeks crucial information


During an onsite inspection by SCC officers, the Plaintiff provides Mr Bekker’s fourth report which recommends that a suitably qualified independent consultant engineer be engaged to check the building integrity and requests further information re the issuance of the recent certificate.


255. The Order is removed

On 24 May 2005, the SCC's structural engineer, Mr Chahoud, recommends that the certification provided by Phillip Johnston be accepted as being satisfactory in complying with the three terms of the Order and therefore recommends its removal.

The Plaintiff is dismissed 

The Wall was built in a straight line and its cracks and encroachment into the Park land were caused by the tree roots. The three steel frames support just the interior of 39 GPR. As the Wall is bowing outward and not being supported from outside, 39 GPR remains structurally unsafe.  

256. 
Was not built in a straight line

On 28 April 2009, PJ attests in an affidavit that, as the Wall was not built in a straight line and with the lack of any separation or movement of the first floor joists, any evident bowing and rotation could not be used as evidence that the Wall is structurally unsound.

257. Judge Nicholas J 

On 14 October 2009 Judge Nicholas J in the Supreme court of NSW hears a motion to dismiss brought by the Defendants based on the failure of the Plaintiff to not prosecute his claims with due dispatch and by his failure to comply with an order of the Registrar made on 4 May 2009.

258. Self-representation 

He recognises the Plaintiff's self-representation and failure to also comply with Registrar's orders in December,2008 which required the filing of a statement of claim and supporting affidavits which were not filed until 30 January 2009.

259. Supporting affidavit 

His Honour notes that the Plaintiff failed to attend a hearing on 25 September,2009, that the matter is stood over to 14 October,2009 and the Defendants are directed to file and serve any motion and supporting affidavit by 5 pm on 9 October,2009.

260.Failure to comply

On 22 September the Defendants notify the Plaintiff that they intend to have the proceedings struck out for his failure to comply with previous directions but there was no reply and no exhibits had been received by the Defendants.

261.5/5 Lower Fort St.

On 2 October, 2009 the Defendants send another letter to the Plaintiff's recorded address of 5/5 Lower Fort St., Sydney, 2000 recording concern that at the failure to provide photo exhibits and noting that they intended to have the matter dismissed.

262. Psychiatry Emergency Care

On 13 October the Court receives a fax of a letter dated 8 October, 2009 from Dr Bremner, Psychiatry Resident Medical Officer of the Psychiatry Emergency Care Centre of St Vincent's Hospital noting the Plaintiff's severe depression and asking for exemption til 8 November,2009.

263. Lack of communication

The Judge deems it not unreasonable to infer that the substantial contributing cause of a list of adjournments was brought on by non-compliance of the Plaintiff with earlier orders as to the service of affidavits and no explanation as to non-attendance or lack of communication.

264. Occurring that morning

His Honour does not consider that the letter from the Psychiatry Resident carries any weight or provides any basis for exemption from proceedings and that the fax of 13 October,2009 showed the Plaintiff well aware that directions proceedings were occurring that morning.

265. Irrevocable cost and inconvenience 

His Honour notes the large, irrevocable cost and inconvenience born by the Defendant's to date and that if proceedings were not dismissed that costs from future proceedings would escalate due to the Plaintiff's failure to reply or attend and the Plaintiff is dismissed.

Loss And Damages

By reason of the matters herein before pleaded in the Plaintiffs have suffered loss or damage.

Particulars

Particulars will be provided at the time of service of expert reports.

Comments