Strathfield Council has been caught off guard by a decision by one of its ratepayers to remain silent over allegations she is living unlawfully in a trophy home which a court ordered her to vacate and demolish two years ago.
Now the council is attempting to use Sarah Malass’ own previous statements to the court against her as part of a bid to have her convicted of contempt charges, fined, ousted from the inner west property, and jailed should she fail to carry out the demolition works within 28 days.
The parties sparred before Justice Nicola Pain in the Land and Environment Court on Thursday, marking the latest chapter in a six-year legal battle over the home on Boden Avenue in Strathfield.
In 2024, Pain ruled that Sarah Malass, her husband Rabi Malass and their three children were living without an occupation certificate in an unlawful dwelling that was substantially larger than what was approved.
She ordered them to vacate the home by February 2025 and demolish the illegal works by April 2025.
Council charged Malass with contempt of court in March this year, accusing her of failing to obey the court orders.
In May, Malass’ legal team indicated she would exercise her right to silence and not serve evidence in her defence.
Council subsequently sought to introduce into evidence a photograph showing the home still standing, and affidavits Malass made last year in which she admitted she was still living in the residence weeks after the deadline to vacate had passed.
At the time, Malass was making an unsuccessful legal bid for an extension of time to remain in the home.
On Thursday, the barrister acting for the council, Geoff Farland, said there had been “clear admissions by the respondent of her guilt”.
“It genuinely took the council by surprise that there would be a plea of not guilty or that there would be no evidence put on,” he told the court.
Malass’s barrister, Patrick Larkin, SC, argued the council should not be allowed to introduce new evidence at this stage in the proceedings.
“They told us in black and white that the evidence was complete,” Larkin said. “We made decisions on that basis.”
He said the council had been caught off guard by his client’s decision to remain silent, and accused the council of “keeping their powder dry” because they wrongly anticipated they would have the chance to cross-examine Malass.
Larkin also argued it was “fanciful” and “plainly wrong” to suggest that evidence given by Malass last year could now be used for an entirely different purpose by the council.
Farland said the council had acted entirely reasonably and denied that the evidence from Malass’ own previous affidavits could be considered new.
“It would be an extraordinary proposition that the respondent is able to prevent the use of its own evidence in these proceedings,” he said.
Both parties agreed that the charges were serious.
Malass sat expressionless in the court as footage taken by a private investigator was shown, featuring various unidentified people coming and going from the property in late 2025.
Her barrister took issue with the private investigator giving the opinion that the property was occupied by a number of people, and queried his expertise on the matter.
“He observed some people, he observed some cars,” Larkin said. “Any person with eyes could do it.”
“I’m not sure about that, Mr Larkin,” Pain countered. She ruled that the investigator had established his experience and did not accept that anyone could have performed the job.
Larkin argued the evidence that various people were coming and going from the property did not amount to proof that it was occupied. Nor would a photograph of Malass visiting the property, had the council been able to produce one, Larkin said.
Pain, who described the arguments made by the parties as “unusual”, reserved her decision. The case continues.
Start the day with a summary of the day’s most important and interesting stories, analysis and insights. Sign up for our Morning Edition newsletter.
