Form 5C

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE No.

Commercial Court DIVISION

BETWEEN

Thanasis Raptis, 25 Benjamin Street, Parkville 3052 Plaintiff –

and –

Steephen Braybrook and City of Melbourne

Phillip Garrett and 333 Choice Properties P / L

Defendants

ORIGINATING MOTION BETWEEN PARTIES

Date of document: 15 September 2016 Filed on behalf of: Thanasis Raptis Prepared by: Thanasis Raptis Tel: (03) 9614 5330 Fax: (03) 9629 9035 Email: [email protected]

Address: 25 Benjamin Street, Parkville, 3052

1

of

TO THE DEFENDANT TAKE NOTICE that this proceeding by originating motion has been brought against you by the plaintiff for the relief or remedy set out below.

ALSO TAKE NOTICE that the plaintiff cannot continue with the proceeding except by order of the Court. You will be given notice by summons of any application for the order and until the summons is served you are not required to take any step in the proceeding.

IF YOU INTEND TO DEFEND the proceeding you must attend before the Court at the time and place named in the summons served with this originating motion. FILED the day of September 2016 Prothonotary

THIS ORIGINATING MOTION is to be served within one year from the date it is filed or with such further period as the Court orders

2

RELIEF SOUGHT

The immediate return of the rent paid to now and realease of the bank guarantee amount covering 6 months of the lease, based on the absence of an Occupancy Permit for use of the premise’s as a cafe

3

Affidavit - Summary

On 2 December 2014, I purchased the Saranti café / restaurant business with its leased premises located at 333 Collins Street, Melbourne 3000 and started to operate it as Blu Nite café / restaurant.

Commencing early 2015 various non-compliances began to become evident.

Reporting of these to 333 Choice Properties P / L - the building owner’s representative as Landlord, Arnold Bloch Leibler - their legal representative and City Melbourne Council did not provide resolution.

Through this time, beyond the initial non-compliances, it further became evident that the premise’s from which Blu Nite operates is leased illegally, as there does not nor ever has existed the compulsorily required Occupancy Certificate for use of the premises as a cafe / restaurant.

The Occupancy Certificate needed for Blu Nite to legally operate as a cafe / restaurant has been sought from Melbourne City Council since making initial contact with them in December 2015 but has not been received to this date.

The building construction completed in 1991 under State Government approval as an office building with the exemption of a restaurant and a bank.

It was not until 1997 a tenant was found to fitout the restaurant with the equipment and services needed for its use as a restaurant. This fitout did not complete with the necessary compliances to Australian Standards, Building Regulations and Codes which is why it was unable to secure the Occupancy Certificate compulsorily required to operate legally as a restaurant since then to this date.

The Affidavit with its Exhibits details and evidences that summarised here.

4

THE PLAINTIFF SEEKS THE FOLLOWING ORDERS: 1. Pursuant to Rule 45.05 of the Supreme Court (General Civil Procedure) Rules 2005

(Vic) the requirements of Rules 5.03(1) and 8.02 are dispensed with.

2. Pursuant to Rule 45.05 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) the plaintiff has leave to proceed by originating motion in Form 5C.

3. An order to restrain the breach pursuant to Section 253 (2) (a), that the leased premises occupied and used by Blu Nite breach Section 40 (1) of the Building Act 1993 Division 1 of Part 5 and Regulation 1011 (1) of the Building Regulations 2006.

4. Any necessary ancillary orders, pursuant to Sect 253 (2) (d) as the Court thinks fit, referencing the affidavit with its exhibits.

5.

A declaration that Blu Nite needs an Occupancy Permit as agreed upon in the 333 Collins Street building development ’agreement’ of the 1988 Planning Minister - State Government approval issued by City of Melbourne, reference Paragraph 5 of the Affidavit and EXHIBIT 07 - SUPREME COURT OF VICTORIA - No. 2584 - Dated 6 and 7 February 1991.

6. An order to initiate subsequent legal action against 333 Choices Properties P/L evaluating the economic, social and environmental impact to the plaintiff resultant to Paragraphs 3, 4 & 5 above.

7. Such further or other orders as the court thinks fit.

5

Documentation referred to in the orders sought;

EXHIBIT 29 – Building Act 1993 – Section 40 (1)

EXHIBITS - Page 116 of 142 - Page 117 of 142

EXHIBIT 30 – Building Regulations 2006 – 1011, (1)

EXHIBITS - Page 118 of 142 - Page 119 of 142

EXHIBIT 31 – Building Act 1993 – Section 253 (2) a & b

EXHIBITS - Page 120 of 142 - Page 121 of 142

6

1.

Place of trial – Supreme Court of Victoria - Melbourne

2

This originating motion was filed by Thanasis Raptis

3.

The address of the plaintiff is 25 Benjamin Street, Parkville 3052

4.

The address for service of the plaintiff is 25 Benjamin Street, Parkville 3052

The addresses of the defendants are;

Melbourne City Council - 90 - 120 Swanston Street, Melbourne 3000

333 Choice Properties P/L - Level 6 333 Collins Street, Melbourne 3000

7

SCHEDULE OF PARTIES

BETWEEN

No

of 20

Thanasis Raptis

and

Steephen Braybrook and City of Melbourne

Phillip Garrett and 333 Choice Properties Pty Ltd

Dated: 15 September 2016

8