HOUSTON DEARN O'CONNOR LAWYERS

T.J. O'Connor, B.A., LL.B. Our Reference: S. E. Shneider, B.A., Dip Law (LPAB)

TOC:JE:113139-450

Senior Associate

Your Reference: C.A. Middleton, B.Comm LLM

7 November 2016

The General Manager Bayside Council DX 4108 MAROUBRA JUNCTION NSW

Attention to: Catherine McMahon By Email: catherine.mcmahon@bayside.nsw.gov.au

Dear Madam

BOTANY BAY CITY COUNCIL & PETER & CHRISTINE KOSTAS PLANNING AGREEMENT - 1153-1155 BOTANY ROAD, MASCOT

We refer to your email of last Friday. The writer has obtained the file which was a matter which Mr Houston looked after. From perusing the file the Voluntary Planning Agreements were executed and a copy of the original held by us is attached. Although initially it appeared that the land had not been dedicated as a public road, Council subsequently found out that there was a re-alignment vested in Council on 1 July 1993 such that this was the formal lodgement of a plan to enable the separate block to be created.

Interestingly Council is entitled to register a caveat over the title to the property if the Planning Agreement is not registered if the consents have not been obtained from the persons required. The only consent required here is the tenant.

We also note that the request registration was sent to the owner' solicitors PT & W Law by Bert Houston on 16 June 2014 together with a copy of the plan for signing by the owner and tenant. We enclose a copy of the plan sent and survey. It was intended to then have the plan signed once returned signed by Council by the owner and his tenant. The return of these documents were pursued with the owner' solicitors on a number of occasions but were never returned. The file then slipped through the cracks when Mr Houston left the firm but the obligation has always been upon the owner to comply with the terms of the Deed.

We have not been provided with any correspondence from Council whereupon it was said that Council would not lodge caveat over the title to the property so we are unsure as to where such an agreement was reached. If it was in July last year then nothing came back to us and it would have been inappropriate for the owner' solicitor to be dealing directly with

P 0 Box 226

Suite 33, Level 5 Burwood NSW 1805

12 Railway Parade

Tel: (02) 9744 9247 DX 8565

Burwood NSW 2134

Fax: (02) 9744 6739 Burwood

Liability limited by a scheme approved under Professional Standards Legislation 1948

AJH:113139-450:1948

2

Council when they knew that we were involved in the matter having pursued Mr Tzannes for return of the signed document up to and including our letter of 25 March 2015.

We recommend that if there is nothing binding upon the council regarding the lodgement of caveat, the caveat be lodged at this time over the title and we advise the owner' solicitor that has been done because of the failure to comply with the registration requirements. Not only does the VPA need to be registered over the title there is obligations to sign the linen plan such that the plan can be registered.

From perusing the file there are also additional requirements when dealing with LPI which will have to be attended to because of the history of the road dedication. The writer does not propose going into those issues but will deal with them as and when compliance is met with the obligations imposed upon the owner of the land pursuant to the VPA.

The suggestion that they will annex the Deed to any sale contract is not appropriate as it could not be enforced. The only way to ensure that happens is to have a caveat registered over the title so that any incoming purchaser is forewarned.

We also fail to understand why a figure for costs was put directly to Council when again the owner's solicitor knew that Council was represented by Bert Houston and this firm.

The writer will speak to Cathy McMahon about the matter to get confirmation of our instructions to lodge the caveat but we need to see what information is on the file regarding this alleged agreement in July of last year with Council's officer.

We therefore suggest that we be instructed to, subject to looking at the alleged agreement first:

1. Lodge a caveat over the title to the property.

2. Write to the developer's solicitor requesting that the plan and request form be signed and returned to us with the name of the Council altered to Bayside Council and initialled by the parties signing their consent to the request form.

If we do not receive an appropriate response then there is always the possibility of the Council threatening commencement of Court proceedings seeking to enforce the terms of the Voluntary Planning Agreement. Taking into account that the road has been already dedicated and this is to formalize it whereby the owner does get a benefit one would think that there would be no discretionary argument as to why the Court would not order that the owner comply with the obligations to have the plan registered over the title which then ultimately leads to, on submitting a statutory declaration to LPI, title then issuing to the Council.

Please advise us in due course of our instructions. We have undertaken a title search which shows that Peter and Christine Kostas still own the property and the only affectation is the earlier identified lease.

3

We have subsequently been provided with the letter from PT & W. It was highly inappropriate for them to approach Council when they knew we were acting for Council and in any event it does not represent any agreement for 2 reasons. It is merely a request to make changes and incorrectly asks for the "final proposed deed" when the Deed was already executed by both parties. Also Mr Dowsett at that he had no authority to agree to an amended deed.

We see no reason why we should not immediately be instructed to lodge the caveat.

Yours faithfully

HOtMON DEARN O'CONNOR

Timothy O'Connor

Encl.

roads Act the realignment strip

MADocs\B5104\126510.doc 3.12.2013

the Council as road without need for

THIS DEED made the —3 ‘'Q+--

day of

2014

BETWEEN: THE COUNCIL OF THE CITY OF BOTANY BAY of 141 Coward

Street, Mascot in the State of New South Wales ("the Council") of the first

part

AND: PETER KOSTAS and CHRISTINE KOSTAS both of 1161 Botany

Road, Mascot in the said State ("the Owners") of the other part

WHEREAS:

A. The Owners are the current registered proprietors of the land known as 1153-1155

Botany Road, Mascot ("the Development Site") being the whole of the land contained in

Folio Identifier A/29906.

B. The rear boundary of the Development Site adjoins the public laneway known as Botany

Lane, Mascot.

C. By notification published in the Government Gazette of 31 October 1969 ("the

Realignment Notice") pursuant to Section 262 of Part IX of the Local Government Act

1919 the Minister for Lands gave notice of the realignment of the boundaries of Botany

Lane as shown on approved realignment plan M5-2626 deposited in the Department of

Lands Sydney.

D. The effect of the publication of the Realignment Notice was to extend the western

boundary of Botany Lane a distance of 3.66 metres inside the Development Site across

the whole of the rear portion of that site ("the realignment strip").

E. Part IX of the Local Government Act 1919 was repealed as from 1 July 1993 and from

that date provisions concerning the widening of public roads have been contained in

Division 2 of Part 3 of the Roads Act 1993 ("the Roads Act").

F. By virtue of the provisions of Division 2 of Part 3 and clause 16 of Schedule 2 of the

the site to a width of 3.6

MADocs\B5104\126510.doc 19.9 2013

2

further dedication as from 1 July 1993 and the Owners became entitled to compensation

from Council in respect of Council's acquisition of the realignment strip.

G. On 1 November 2007 the Owners lodged with Council Development Application

08/115 seeking development consent for alterations/additions to the existing building on

the Development Site ("the Development Application").

H. On 28 February 2008 the Council received a letter dated 26 February 2008 from

solicitors acting on behalf of the Owners, advising of the Owners preparedness to enter

into a Planning Agreement with the Council in connection with the Development

Application to provide for:

(i) dedication by the Owners to the Council as road that part of the Development

Site comprising the realignment strip;

(ii) waiver by Council of a Section 94 Contribution in respect of the development

the subject of the Development Application in lieu of payment of compensation

in resect of the acquisition of the realignment strip; and

(iii) Council permitting the Owners to continue to use the realignment strip until

notification by the Council of its requirement to use it for road purposes, subject

to the Owners maintaining the land comprising the realignment strip at their cost

during such period of occupation.

I. By Notice of Determination dated 12 March 2008 the Council advised the Owners of its

consent to the Development Application subject to conditions set out therein ("the

Development Consent"). Condition 2 of the Development Consent provides:

"2. The applicant must, as per the Voluntary Planning Agreement at no cost or

expense to Council dedicate the area designated for road widening at the rear of

the remaining conditions contai

M:\Docs\B5104\126510.doc 19.9 2013

t thereby be affected.

3

J. At the time of lodgement of the Development Application, and receipt by the Council of

the letter specified in recital H hereof, issue of the Notice of Determination specified in

recital I hereof, the parties hereto were unaware that the realignment strip had already

vested in Council as specified in recital F hereof and were acting under the impression

that a formal dedication by the Owners to the Council of the land comprising the

realignment strip was required.

K. In light of the subsequent knowledge that the realignment strip vested in the Council on

1 July 1993 as specified in recital F hereof the Owners have modified their offer to enter

into a Planning Agreement with the Council as hereinafter set forth.

L. Pursuant to Section 93F of the Act, the parties hereto now enter into this Planning

Agreement.

M. This Planning Agreement has been publicly notified in accordance with Section 93G of

the Environmental Planning & Assessment Act 1979 ("the Act") and clause 25D of the

Environmental Planning & Assessment Regulation ("the Regulation").

NOW THIS DEED WITNESSES as follows:

1. This Planning Agreement shall be binding upon the parties hereto and upon their

respective heirs, executors, transferees and assigns.

2. This Planning Agreement does not take effect until the Owners have taken up and acted

upon the Development Consent.

3. The rights of the Council expressly provided for herein are cumulative and in addition to

and not exclusive of any rights of the Council existing at law or which the Council

would otherwise have available to it.

4. In case one or more of the provisions contained in this Planning Agreement shall be

invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of

4

5. The Owners and the Council acknowledge, covenant and agree:

(a) that the grant of approval of the Development Consent by the Council without

inclusion therein of a condition requiring payment of any contribution pursuant

to Section 94 of the Act, or any other monetary contribution it might otherwise

have been entitled to require, is accepted by the Owners in full satisfaction of any

claim for compensation they have or may have had under the Land Acquisition

(Just Terms Compensation) Act 1991 or any other legislation in respect of the

acquisition by the Council of the realignment strip;

(b) that the Owners shall forthwith upon receipt from the Council or its solicitors

sign all such plans or documents and do all such other things necessary on their

part to enable the Council to obtain formal title to the realignment strip;

(c) (i) that the Owners shall be permitted to continue to use the realignment strip

(but without erecting any building or structure thereon) until twelve (12)

months after receipt from Council of notification in writing to the Owners

of the Council's requirement to use the realignment strip for road

purposes;

(ii) notwithstanding clause 5(c)(i) the Owners shall be permitted to use the

realignment strip until such time as the Council commences physical

work on the site.

(d) that the Council will not give a notice of the kind specified in subclause (c) of

this clause unless acting in good faith it proposes to physically carry out

widening of Botany Lane to at least one cross street and such work has been

listed in the Council's adopted capital works programme;

(e) that no rent or fee shall be payable by the Owners for their use and occupation of

the realignment strip as provid a (c) hereof;

M:\Docs\B5104\126510.doc 19.9 2013

5

that the Owners must at their expense repair, maintain and keep clean the

realignment strip during the period of their aforesaid occupation thereof; and

(g) that upon provision to the Council by the Owners of this Planning Agreement

duly executed by them the Council will issue an Occupation Certificate in

respect of the development the subject of the Development Consent.

6. The Owners covenant with the Council:

(a) that they shall do all things reasonably necessary to obtain the consent to the

registration of this Planning Agreement over the title to the Development Site

pursuant to Section 93H of the Act from all persons who have an interest in the

Development Site;

(b) that forthwith after receiving the consents specified in subclause (a) hereof they

shall cause this Planning Agreement to be registered on the title of the

Development Site;

(c) that if this Planning Agreement is not registered on the title to the Development

Site, and if the Owners should propose to sell the Development Site, then they

shall:

(i) within seven (7) days of listing the Development Site for sale, either

through an agent or privately, notify the Council of such intention;

(ii) as a condition of any sale, require that the incoming purchaser enter into

with Council a like Planning Agreement to this present Planning

Agreement in which the same covenants as set out herein shall apply;

(iii) within seven (7) days of exchange of contracts, notify the Council of the

sale and provide the Council with a copy of the contract;

(iv) within twenty one (21) days of receipt from the Council of a replacement

Planning Agreement be il and the purchaser substantially

M:\Docs\B5104\126510.doc 19.9 2013

consolidation of title, strata p ument as a result of a caveat

M:\Docs\135104\126510.doc 19.9 2013

6

in the form of this Planning Agreement, have it executed by the

purchaser and return it to the Council;

(v) that if this Planning Agreement is not registered on the title to the

Development Site, and if the Owners should propose otherwise than by

sale to transfer or assign their interest in the Development Site or any part

their of to a transferee or assignee, then they shall before effecting such

assignment or transfer have the incoming transferee or assignee enter into

an agreement with the Council substantially in the form of this Planning

Agreement insofar as concerns the interest assigned or transferred and

shall provide same to the Council. The Council shall pay the Owners'

reasonable legal costs and disbursements incurred in complying with this

provision.

7. (a) The Owners covenant and agree with the Council that in the event that the

consents to registration of this Planning Agreement cannot be obtained from all

persons who have an interest in the Development Site as required by clause 6(a),

then the Council shall be entitled to register a caveat at Land & Property

Information NSW over the title to the Development Site to protect its interest

therein pursuant to this Planning Agreement;

(b) Upon completion by it of the physical widening of Botany Lane the Council shall

withdraw any caveat lodged pursuant to subclause (a) hereof;

8. (a) The Council shall pay the Owners' costs in connection with this Planning

Agreement;

(b) Each party shall pay its own costs of:

(i) the consent by Council to the registration of any Iease, mortgage,

and must not to disclose or rely

MADocs \B5104 \126510.doc 19.9 2013

e subject of a subpoena to give

7

being registered on the title to the Development Site; and

(ii) the costs of preparing any substitute Planning Agreement between

Council and any incoming purchaser, assignee or transferee of the

Development site.

9. Should the Owners be in breach of any terms of this Planning Agreement, and not rectify

the default within twenty one (21) days of receiving notice from Council to do so

(except if a delay in rectification is likely to cause irremediable damage or prejudice to

Council, in which case no notice is required) Council shall be entitled, at its option, to

enforce by way of injunction relief in the Supreme Court any provisions of this Planning

Agreement which have been breached, or to seek damages or seek to enforce the

provisions of any development consent which relate to the Development Site whether by

way of order under Section 121B of the Act, or Class 4 proceedings in the Land and

Environment Court, or otherwise.

10. Any amendment or variation to this Planning Agreement is not effective unless it is in

writing and signed by all the parties.

11. The explanatory note put on exhibition with this Planning Agreement is not to be used in

construing the terms of this Planning Agreement.

12. In the event of any disagreement between the parties hereto arising out the provisions

of this Planning Agreement, and if the parties are unable within a reasonable time to

resolve such disagreement amicably, either party may serve notice on the other

requiring the matter to be referred to a conciliation by a single conciliator at the

Australian Commercial Disputes Centre Limited in Sydney. The parties shall

thereafter in good faith seek to resolve the matter through conciliation and the parties

shall equally bear the cost of such conciliation. The parties must keep confidential

8

evidence or produce documents in any arbitral, judicial or other proceedings:

(a) views expressed or proposals or suggestions made by a party, an expert or the

conciliator during the conciliation relating to a possible settlement of the

dispute;

(b) admissions or concessions made by a party during the conciliation in relation

to the dispute; and

(c) information, documents or other material, including any confidential

information, concerning the dispute which are disclosed by a party during the

conciliation unless such information, documents or facts would have been

otherwise discoverable in judicial or arbitral proceedings.

13. (a) All words in this clause which are also defined in the A New Tax System

(Goods and Services Tax) Act 1999 (Cth) ("the GST Act") have a

corresponding meaning to that in the GST Act.

(b) The consideration for any supply under this Planning Agreement excludes

GST.

(c) Where a party to this Planning Agreement is taken to have made a supply to

another party, the recipient of that supply must, in addition to the consideration

payable for the supply and when paying the consideration for the supply, also

pay to the maker of the supply an amount equal to the GST payable in respect

of that supply. The recipient of a supply must also pay the GST payable in

respect of a supply for which no monetary consideration is payable when the

maker of the supply demands payment.

M:\Docs\B5104 \126510.doc 19.9 2013

9

(d) The maker of a supply must give the recipient a tax invoice in the form

required by the GST Act at the same time it receives payment from the

recipient of the GST payable for that supply.

(e) Despite any other provision of this Agreement, any amount payable under this

Agreement, which is calculated by reference to an amount paid or incurred by

a party to this Planning Agreement, is reduced by the amount of any input tax

credit to which that party or a member of its GST Group is entitled in respect

of that amount.

14. This agreement binds the parties hereto and their respective executors, administrators

and assigns.

IN WITNESS WHEREOF the parties have set their hands and seals on the day first

hereinbefore written.

EXECUTED as a Deed on behalf of THE COUNCIL OF THE CITY OF BOTANY BAY by:

yor

General Manager

MADocs\B5104\126510.doc 19.9 2013

- 1 0 -

SIGNED SEALED & DELIVERED by the said PETER KOSTAS in the presence of:

SIGNED SEALED & DELIVERED by the said CHRISTINE KOSTAS in the presence of:

) ) )

) ) )

MAIDocs \B5104 \126510.doc 19.9 2013

)

DATED 31 3-,A ck r y

2014

BETWEEN:

THE COUNCIL OF THE CITY OF

BOTANY BAY

("the Council")

AND:

PETER KOSTAS & CHRISTINE KOSTAS

("the Owners")

DEED OF AGREEMENT

HOUSTON DEARN O'CONNOR Solicitors Suite 33, 5thFloor 12 Railway Parade BURWOOD NSW 2134

DX 8565 BURWOOD Tel: 9744 9247 Fax: 9744 6739 REF: AJH:AS:B51 04

MADocs\B5104 \ 126510.doc 3.12.2013

WATSON BUCHAN PTY. LTD.

A.C.N. 050 689 131

CONSULTING SURVEYORS Incorporating: D.R. Buchan & Associates Brown & Little Gary Fuller MEMBERS OF THE INSTITUTION

OF SURVEYORS AUSTRALIA

JOHN A. WATSON BAPP.SC.ISURVI

BRUCE A. JOHNSTON B.SURV.

REGISTERED SURVEYORS

Our Ref: 12/0477

4 October 2013

City of Botany Bay

Attn: John Brandenberg

P 0 BOX 331

MASCOT NSW 1460

Re: 1153 — 1155 Botany Bay Road, Mascot

Dear Sir,

Please find enclosed our linen plan and copies being a plan of subdivision over the above property,

together with the Deposited Plan Administration Sheet, as requested.

Carefully peruse the plan and confirm that the plan made by me correctly represents your intentions.

If this does not meet your requirements, please contact me.

Amendments have been made to the plan after correspondence with Bert Houston of Houston, Dearn

and O'Connor.

If we can be of any further assistance, please do not hesitate to contact this office.

You f ithfully,

e Johnston

Registered Surveyor under the Surveying and Spatial Information Act 2002

CONSULTANTS IN SUBDIVISION, LAND INFORMATION AND DEVELOPMENT

SUITE 1 1 /19 CENTRAL ROAD, MIRANDA 2228 • P.O.Box 176. CARINGBAH 1495

TEL: (02) 9524 4073, (02) 9525 9113 • FAX: (02) 9540 1387 • EMAIL: SURVEYOR@WATSONBUCHAN.COM.AU

PLAN FORM 6

WARNING: Creasing or folding will lead to rejection

DEPOSITED PLAN ADMINISTRATION SHEET Sheet 1 of 2 Sheet(s)

Registered: Office Use Only

Title System:

Purpose:

Office Use Only

PLAN OF SUBDIVISION OF LOT A IN D.P.29906.

L.G.A.: BOTANY BAY

Locality: MASCOT

Parish: BOTANY

County: CUMBERLAND

Crown Lands NSW/Western Lands Office Approval

I (Authorised Officer) in approving this plan certify that all necessary approvals in regard to

the allocation of the land shown herein have been given. Signature: Date:

File No.:

Office:

Survey Certificate

I BRUCE ANDREW JOHNSTON

WATSON BUCHAN SURVEYORS

of... PO BOX 176, CARINGBAH. 1495

a surveyor registered under the Surveying and Spatial Information Act 2002, certify that:

'(a) The land shown in the plan was surveyed in accordance with the Surveying and Spatial Information Regulation 2012, is accurate and the survey was completed on....2Q/2/2.QU.....

was surveyed in accordance with the Information Regulation 2012, is accura completed on, th- :. in accordance with t • gulation.

'(c) The . • . - own in this plan was compiled . ... . . .. . • .

Surveyin. • . 'atial the survey was

not surveyed was compiled

in accordance with the .

DatiM:..?.9./.?/P;1.1.

land show in the plan that

Subdivision Certificate

I, *Authorised Person/'General Manager/'Accredited Certifier, certify that the provisions of s.109J of the Environmental Planning and Assessment Act 1979 have been satisfied in relation to the proposed

subdivision, new road or reserve set out herein..

Signature: Accreditation no :

Consent Authority:

Date of endorsement :

Subdivision Certificate no •

File no.

*Strike through if inapplicable.

Signatur

Surveyor ID: .1.37Q

Datum Line: 'A' —'5'

Type: 'Urban/'Rural

The terrain is *Level/Undulating/ISteeHleutitainetiter

'Stoke through if inapplicable. 'Specify the land octuallysuryeyed or specify any

is not the subject of the plan.

Statements of intention to dedicate public roads, public reserves and drainage reserves.

Plans used in preparation of survey/compilation.

D.P.29906 D.P.341159

D.P.1873 D.P.541076

D.P.1127006 D.P.340093

D.P.404338 D.P.832835

D.P.404339 D.P.749052

D.P.33925 5-2626 D.P.1052233 D.P.617916

If space is insufficient continue on PLAN FORM 6A

Signatures, Seals and Section 88b Statements should appear on PLAN FORM 6A

Surveyor's Reference: 12/477

Office Use Only Office Use Only

Registered:

PLAN OF SUBDIVISION OF LOT A IN D.P.29906.

Subdivision Certificate No

Date of Endorsement:

This sheet is for the provision of the following information as required.. * A schedule of lots and addresses — See 60(c) SSI Regulation 2012 • Statements of intention to create and release affecting interests in

accordance with Section 888 Conveyancing Act 1919 • Signatures and seals — see 1950 Conveyancing Act 1919 • Any information which cannot fit in the appropriate pond of sheet 1

of the administration sheets.

PLAN FORM 6A (2012)

WARNING: Creasing or folding will lead to rejection

DEPOSITED PLAN ADMINISTRATION SHEET Sheet 2 of 2 Sheet(s)

LOT 10 No. 1153-1155 BOTANY ROAD, MASCOT 2020

If space is insufficient use additional annexure sheet.

SURVEYOR'S REFERENCE: 12/477

con 51.9)

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SURVEYING AND SPATIAL INFORMATION REGULATION 2012 CLAUSE 61(2)

SOURCE . DATED 20/2/2013

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InfoTrack An Approved LPI NSW Information Broker

s•1, Title Search InfoTrack:

• e,

LAND AND PROPERTY INFORMATION NEW SOUTH WALES - TITLE SEARCH

FOLIO: A/29906

SEARCH DATE

5/11/2016

TIME EDITION NO DATE

1:27 PM 10 22/2/2014

LAND

LOT A IN DEPOSITED PLAN 29906 AT MASCOT LOCAL GOVERNMENT AREA BAYSIDE PARISH OF BOTANY COUNTY OF CUMBERLAND TITLE DIAGRAM DP29906

FIRST SCHEDULE

PETER KOSTAS CHRISTINE KOSTAS

AS TENANTS IN COMMON IN EQUAL SHARES (T AD74439)

SECOND SCHEDULE (3 NOTIFICATIONS)

1 RESERVATIONS AND CONDITIONS IN THE CROWN GRANT(S) 2 H252194 CROSS EASEMENTS (S181 B CONVEYANCING ACT, 1919)

AFFECTING THE PARTY WALL(S) SHOWN ON THE COMMON BOUNDARY OF LOTS A & B IN DP29906

3 AG157665 LEASE TO INSYNC PERSONNEL PTY LTD OF THE PART OF THE FIRST FLOOR PREMISES AT 1153-1155 BOTONAY ROAD, MASCOT SHOWN HATCHED IN PLAN WITH AG157665. EXPIRES: 28/2/2014. OPTION OF RENEWAL: FOUR OPTIONS EACH OF 3 YEARS.

NOTATIONS

UNREGISTERED DEALINGS: NIL

*** END OF SEARCH ***

113139-4 PRINTED ON 5/11/2016

* Any entries preceded by an asterisk do not appear on the current edition of the Certificate of Title. Warning: the information appearing under notations has not been formally recorded in the Register. InfoTrack an approved NSW Information Broker hereby certifies that the information contained in this document has been provided electronically by the Registrar General in accordance with Section 96E1(2) of the Real Property Art 1900.