Either the well was very deep, or she fell very slowly, for she had plenty of time as she went down to look about her and to wonder what was going to happen next.
For three months during 2004 Mr. Voukelatos, the owner of 39 Glebe Point Road, tried to provoke Amir Bodenstein every time the latter passed by the property. In August Bodenstein moved to 5A Franklyn Street, Glebe.
In February and March 2005 Bodenstein filed an Amended Summons and Voukelatos filed Motions to Dismiss with the Supreme Court of NSW. A listing date was set for 10 March.
Bodenstein obtained documents from the Council of the City of Sydney which showed that Voukelatos’s efforts to delay the day in court were in the hope of first getting an Occupation Certificate from the Council which would help him prevent relief against forfeiture being granted to Bodenstein.
Voukelatos approached Council’s Amanda Gorman on successive occasions to hurry things along and he succeeded in obtaining an Interim Occupation Certificate.
After it received a complaint alleging Gorman should not have granted the Certificate, it advised Voukelatos in May 2005 that another independent inspection of the property would be required.
In December 2004 Voukelatos had begun works on the property in an effort to comply with Council’s Emergency Order. A DA was issued and displayed on the front door. Bodenstein believed that those works would not, however, resolve the fundamental structural problems of the building.
On 5 May 2005 Paul Bekker, the structural engineer, inspected the property for a third time. He issued a report recommending that that the wall be cordoned off in the interest of public safety and that the wall be rectified immediately. He added that any repairs that did not address these problems with the footing of the wall would not rectify the fundamental defect of the wall and thus would be ineffective in providing stability to its very fragile nature.
He noted that the eastern wall was still extremely out of alignment both vertically and horizontally. Though trees had been removed, their roots had been left in place, window openings had been made, and there was no indication of any rebuilding or underpinning having taken place.
He recommended demolition of the wall and rebuilding on properly engineered footings founded on solid foundation below the effects of the culprit tree roots.
He warned that if No. 39’s eastern wall fell down, it would likely have a bad effect on No. 41 as well.
On 13 May 2005 lawyers for Voukelatos and for Bodenstein appeared in the NSW Supreme Court.
In what Bodenstein would describe as an “ambush”, Voukelatos’s solicitor served the following documents on Bodenstein:
i. Outline of applicant’s submissions
ii. Defendants’ chronology
iii. Affidavit of Mr. Zois Voukelatos with a copy of Interim Occupation Certificate and a copy of Retail Lease Disclosure Statement.
iv. 4 copies of precedents in regard to relief against forfeiture.
Voukelatos claimed in the Court that he had done much work on the premises and lost a lot of money. He produced the Interim Occupation Certificate and a signed lease from a new tenant. He said that he wanted to live with his family on the first floor of the premises.
Bodenstein was not granted relief against forfeiture.
Contents
1. Mr. Voukelatos’s provocation
2. Continuation of proceedings
3. Compliance Department Officer
4. DA approval
5. Properly engineered footing
6. The Ambush
1. Mr. Voukelatos’s provocation
Mr. Voukelatos tried to provoke me for three months in 2004, each time I passed by 39 Glebe Point Road (Glebe Police Event number 73709798). In August 2004 I leased a warehouse on 5A Franklyn Street, Glebe, and I moved to leave there on January 2005.
2. Continuation of proceedings
In 17 February 2005, the Registrar of the Supreme Court of NSW directed that I was to file and serve an amended Summons by 3 March 2005, and Mr. Voukelatos to file and serve motion to dismiss by 10 March 2005, and the matter to be relisted by 10 March 2005. I filed and served the amended Summons on 3 March 2005, and Mr. Voukelatos filed the motion to dismiss on 9 March 2005, and he served it to me on the listing day, 10 March 2005.
3. Compliance Department Officer
In the document we recovered from the council in August 2005, we found the reason Mr. Voukelatos wanted to delay the listing. Mr. Voukelatos was trying to find a tenant, and, in order to do that he needed to get an occupation certificate. He figured that with a new Lease in his hand, an occupation certificate and all the work he did in the premises, the relief against forfeiture would not be granted to me. That indeed is would happen in court.
Mr Voukelatos needed an Occupation Certificate also for the legal proceedings and the Council issued an Interim Certificate which it later reissued due to a typing error.
15 April 2005 Mr. Voukelatos to Amanda Gorman of Sydney City Council compliance department.(xx)
“In connection with the obtaining of a part occupation certificate for the residence did you say that smoke alarms and exit signs need to be fitted to both the residence and the shop? As this is likely to take time, could you please confirm as I was under the impression that as long as the fireproof ceiling in the shop was complete and smoke alarms fitted to residence we would be OK insofar as part occupation residence.”
15 April Amanda Gorman to Mr. Voukelatos. (xx)
Fran O’Brien has stated that if you cannot comply with the conditions of consent you will need to lodge a section 96 for the hot water system. Sorry, I cannot help you any more than what I have on this matter.
Many thanks
Amanda
On 27 April 2005, Mr. Voukelatos filed his affidavit in support of the motion for dismissal and a Notice of Change of Solicitor from Spark Helmore to Jordan Antonopoulos.
27.04.05 Mr Voukelatos to Mrs Gorman *OJ 1, 527
“Further to our telephone discussion today I confirm that I will install a fire door in the upstairs residence from the deck.”
28.04.05 Mrs Gorman City of Sydney *OK 1-2, 528-9
“Cert of compliance for fire rated gyprock – both levels.”
05.05.05 Mr Voukelatos to City of Sydney *OL 1-2, 530-1
“Application for occupation certificate”
“part of building 1 ST Floor use Residence BCA 6
“other certificates relied on 2) Structural Engineer – Phillip Johnston”
05.05.05 Mr Johnston to Mr & Mrs Voukelatos *OM 1, 532
“Certificate”
“First Floor Slab Preparation were seen on 13th April 2005 and, after adjustments of concrete cover to column stirrups and corner bars, and removal of form oil from some reinforcement, were satisfactory for pouring of concrete to proceed.”
On 9 May 2005, the City of Sydney issued an Interim Occupation Certificate to the building, No. 39 Glebe Point Road. (Ex. “A 3-4”, Page 3-4).
09.05.05 Mrs Gorman, City of Sydney *ON 1, 533
“Record of missed inspection”
“Type of inspection that was missed
1st floor slab steel”
“Documentary evidence that was relied on to satisfy Council that the work that was subject of the missed inspection was satisfactory Structural Engineer Certificate dated 5th May 2005, prepared by Phillip Johnston”
09.05.05 Interim Occupation Certificate *OO 1-3, 534-6
“Type of Certificate Interim Certificate”
12.05.05 Building & Compliance Memo *OP 1, 537
“I signed the Interim Occupation Certificate for this premises on the recommendation of Amanda Gorman. However, a complaint has been received that Amanda should never have recommended this certificate to be issued because there are significant non-compliance issues.
I will need you to personally inspect this premises ASAP on your return (13/5/05) and advise me if the Interim OC has been correctly issued (i.e. all matters required by the regulations had been complied with). Unfortunately, Amanda is not to go on the site for this re-basement as the accusation has been against her and we need to demonstrate that the job has been independently reassessed again.
Councilor Kremmis and our Director are awaiting our quick response to this.”
4. DA approval
From December 2004 until now Mr. Voukelatos was carrying out work on the building to comply with the Emergency Order from Sydney City Council. On 6 December 2004, Mr. Voukelatos displayed on the front door of 39 GPR the notice of his DA approval. Mr. Voukelatos was slowly carrying out work just in the interior of the building. I believe his present work will not resolve the fundamental structural problems of the building.
5. Properly engineered footing
On 5 May 2005, Mr. Bekker revisited the site to reassess the condition of the eastern wall of the property in light of the alteration work being carried out to the building at present and on 13 May 2005, Structural Engineer Mr. Paul Bekker issued a report to ‘whom it may concern’, in regard to the external sidewall on eastern boundary of the building, No. 39 Glebe Point Road, Glebe. (Ex. “A 1-5”, Page 1-5) On 13 May 2005, Mr. Bekker issued a report in which he recommended that the wall be cordoned off in the interest of public safety and that the wall be rectified immediately. (Ex. “A 5”, Page 5). Mr Bekker stated that any repairs that did not address these problems with the footing of the wall would not rectify the fundamental defect of the wall and thus would be ineffective in providing stability to its very fragile nature.
13.05.05 – Mr Bekker to Whom It May Concern – OW 1, 545
“Re: External sidewall on eastern boundary
39 Glebe Point Road, Glebe
On May 5 2005 we visited the site at 39 Glebe Point Road to re-assess the condition of the eastern wall to this property in light of the alteration works being carried out to the building at present. This is our fourth visit to the site since Oct 2002.
The eastern wall of this terrace building when viewed externally can be seen to be still extremely out of alignment both vertically and horizontally. The wall clearly was not built in this condition and is now in precarious situation due to the effects of the trees that were planted immediately adjacent to the footings of this wall. The trees have since been removed. However, the roots, which we observed entwined within the footings of the building during our previous visits (Oct 2002) have been left in place. Window openings have been made in the wall but there is no indication of any rebuilding or underpinning has taken place.
As stated previously we believe the wall to still be in danger of collapse and we restate our recommendation that the wall be cordoned off in the interest of the public safety, and the wall be rectified immediately. Due to the effects of the root fabric remaining in the ground and entwined within the existing footing, any repairs that do not address these problems with the footing of the wall will not rectify the fundamental defect of the wall and thus will be ineffective in providing stability to its very fragile nature. We recommend that repairs as stated previously entail demolition of the wall and rebuilding on properly engineered footings founded on solid foundation below the effects of the culprit tree roots.
As well the public safety issue consideration to the public space at the side of the building, concern is also expressed regarding the adjoining connected property to the west which would be badly affected as well if collapse of the eastern wall were to occur. This building at No. 41 Glebe Point Road has numerous cracked walls as well as its façade can be seen to be on a lean towards the street. Numerous cracks in the party wall were also previously noted from inside No. 39. As the cross walls to No. 39 have been removed and the new opening have destabilized the eastern wall further, if this wall were to collapse it could pull over the party wall through its connection at roof level.
We recommend that if remedial works are not carried out by the Owner immediately then Council in the interest of public safety and amenity by necessary are required to engage a suitably qualified independent Consultant to check the integrity and stability of the buildings at No. 39 and No. 41 but in particular the eastern wall in question.”
6. The Ambush
On 6 May 2005, Mr. Voukelatos’s barrister and I were relisted by Mr. Berecry, the registrar of the NSW Supreme Court, for referral to the Master on the 13 May 2005.
On 13 May 2005, I stood with Mr. Voukelatos’s barrister in front of the registrar, Mr. Berecry, who asked us for time estimation.
Mr. Voukelatos’s barrister said: “40 minutes, your registrar”.
At or around 12.15 PM, in the Duty Master courtroom, Mr. Voukelatos’s Solicitor Mr. Jordon Antonopoulos served me the following documents:
i Outline of applicant’s submissions
ii Defendants’ chronology
iii Affidavit of Mr. Zois Voukelatos with a copy of Interim Occupation Certificate and a copy of Retail Lease Disclosure Statement.
iv 4 copies of precedents in regard to relief against forfeiture.
I was unprepared for that ambush.
Mr. Voukelatos claimed that during this time he had done a lot of work on the premises and lost a lot of money. He showed the duty master the interim occupation certificate and a signed Lease with a new tenant who was willing to pay $1000 per week. He claimed that he wanted to live in the first floor of the premises with his family.
I was not granted a relief against forfeiture.
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