ADD CALLOUT SENTENCE HERE
Amir Bodenstein, an Israeli, migrated to Australia and, together with his business partner, Evos Primost, launched a business, Morden Paints Sydney Australia (MPSA), whose goal would be to apply special paints to prestige projects and market special paint finishes for the building trade in that country.
In 1998-99 Bodenstein set up operations in Glebe, Sydney. The firm won three Australian awards for excellence.
In 2002 he leased a two storey Victorian terrace at 39 Glebe Point Road, Glebe, intending to to establish therein a family residence, a showroom for Morden Paints, and a restaurant which his wife would run.
Unfortunately the terrace was found to have been vandalised and cracks, caused by the roots of nearby trees, were found in the eastern wall. Bodenstein, the tenant, engaged Philip Johnston, a civil engineer, to fix those problems.
The building’s owner, Mr Voukelatos, began to argue with Bodenstein about insurance clauses, structural engineering and Council rules. The latter found the contract he had signed made no mention of residential use and found other errors and changes as well, and asked the owner for changes in it. The owner replied that the tenant was asking for too many changes.
The owner agreed to give the tenant a five year extension to his lease because the latter would do renovations there, but the owner later changed his mind.
Johnston inspected the property. Paul Bekker, another civil engineer, also inspected the property and warned the building’s eastern wall was in danger of an imminent collapse. Johnston found that the tenant had carried out unauthorised works and reported him to Council and to the owner.
In 203 Craig Shelsher inspected the property and wrote to Council advising that the eastern wall be replaced and a restaurant/cafe established.
Bodenstein, the tenant, engaged MacLeod to inspect the property. The owner conveyed to the tenant Johnston’s complaints regarding unauthorised works and reminded him that his rent was in arrears.
The owner, Mr Voukelatos, disputed the structural properties that had been reported by Bekker.
The owner told Council that he was open to either a complete demolition of 39 Glebe Point Road or to a rebuilding to include a restaurant with a separate entrance. Council replied that demolition was not an option.
On 1 May 2003 the owner locked the tenant out of the property (the tenant’s tools of trade were inside when the external doors were locked by the owner’s representatives).
Council ordered the owner to undertake remedial work within 28 days. Johnston continued to claim there was no immediate danger of collapse; Bekker, however, repeated that the building’s structural problems needed to be fixed quickly.
Bodenstein met Voukelatos and asked him to fix the problems. However, the owner threatened to sue the tenant for damages to the property.
In 2003 Council issued three drafts of an Emergency Order for 39 Glebe Point Road, ordering bracing and rectification works of the foundations and walls to be completed.
In 2004 Bodenstein, afraid that the property would be rented or sold to a third party, successfully applied for a caveat over the property. He later applied for an extension to the caveat, which was refused by the Supreme Court of NSW.
The owner’s wife applied to the Registrar General for the surrender of the tenant’s lease.
On 5 April 2004 Bodenstein visited the property to see if the structural properties were being rectified. His name was removed from the lease.
The owner successfully applied for an AVO against Bodenstein.
Council advised the owner that Term 2 of the Emergency Order had to be carried out in order to prevent an imminent collapse.
Johnston advised Council that the works had been completed. In May 2005 Council issued an Interim Occupation Certificate for the property. However, a Council memo later appeared, suggesting the certificate had been improperly issued.
Works continued to be carried out by the owner in the property. Bekker reported that the premises at 41 Glebe Point Road had been structurally effected by the problems at 39 Glebe Point Road.
In May 2005 documents were served on Bodenstein by the owner. Appearing before the Balmain District Court, the owner stated that he had found a new tenant for the property and the court did not grant Bodenstein relief against forfeiture.
Later in that month Council’s structural engineer recommended that the certificate provided by Johnston be accepted as satisfactory in complying with the three terms of the Emergency Order dated 29 March 2003 on the property.
In June Council wrote to confirm that “an application has been received for an Interim Occupation Certificate for the upgrade existing ground floor, renovate first floor unit and toilet addition at rear (…) at the subject address. Following an inspection of the premises on 5 May 2005 it is recommended that an Interim Occupation be issued”.
In April 2009 Johnston repeated his former conclusions that “the claimed bowing and rotation could not be used as reasons to claim that the eastern wall was structurally unsound”.