Auburn City Council v Zhu (No 4)

[2012] NSWLEC 228

Land and Environment Court

New South Wales

Medium Neutral Citation:

Auburn City Council v Zhu (No 4) [2012] NSWLEC 228

Hearing dates:

9 October 2012

Decision date:

09 October 2012

Jurisdiction:

Class 4

Before:

Sheahan J

Decision:

1.The Council's Notice of Motion for contempt is adjourned to a date to be fixed, but not before 31 October 2013.

2.The defendant is ordered to pay in full the Council's costs to date of the contempt proceedings, in the sum of $12,000, by 31 October 2013.

3.In the event that the costs are paid in full on or before that date, the contempt proceedings are hereby dismissed without further order.

4.If the costs are not so paid by that date, the Council has liberty to apply to the Registrar to have the matter relisted.

Catchwords:

CONTEMPT: breach of consent orders requiring demolition of illegal building works - purging of contempt - prosecutor not pressing charge - payment of costs as agreed

Cases Cited:

Zhu v Auburn Council [2009] NSWLEC 97
Auburn City Council v Zhu [2012] NSWLEC 88
Auburn City Council v Zhu (No 2) [2012] NSWLEC 147
Auburn City Council v Zhu (No 3) [2012] NSWLEC 151

Category:

Principal judgment

Parties:

Auburn City Council (Prosecutor)
Ling Ling Zhu (Defendant)

Representation:

Mr I Woodward, solicitor, for Prosecutor
Defendant (in person)
Storey and Gough (Prosecutor)

File Number(s):

09/40990

EXTEMPORE Judgment

1. Ms Zhu is before the court to be sentenced for contempt of orders made by the court, by consent, now more than two years ago (namely on 30 April 2010).

1. Those orders required her to remove certain building works done illegally to and at a house at 23 London Road, Berala.

1. Before these class 4 proceedings were commenced in December 2009, prosecution proceedings had been finalised by the payment of a fine for the actual illegal construction works. Ms Zhu pleaded guilty in Parramatta Local Court, but successfully appealed the amount of the fine to Pain J (Zhu v Auburn Council [2009] NSWLEC 97).

1. These contempt proceedings were commenced in November 2011. No plea has been entered, and the defendant has filed no evidence. She gave oral evidence before Pepper J on 5 July, and was cross-examined, and she made some submissions today, with the assistance of an interpreter.

1. The extensive background to the matter can be gleaned by reading the various affidavits filed in both the substantive class 4 matter and these contempt proceedings, and from considering Pain J's judgment and three others since (Auburn City Council v Zhu [2012] NSWLEC 88, Auburn City Council v Zhu (No 2) [2012] NSWLEC 147, Auburn City Council v Zhu (No 3) [2012] NSWLEC 151).

1. The breach of the planning laws involved in the matter was very serious, and the illegal works depicted in many photos among the affidavit material were extensive.

1. At all material times the defendant was, as she presently remains, a single mother of three children aged 8 to 13 years. She had then, and has had until recently, legal assistance largely on a pro bono basis. Her financial circumstances are poor, her personal circumstances are tinged with much sadness, and she has suffered from depression.

1. She has, however, put the Council to a great deal of trouble over the past four years, and it has shown her commendable restraint and compassion.

1. The Council has not sought to press the contempt charge, and have the court impose any penalty, if the works required by the 2010 orders were completed, but understandably it seeks an order for its costs to be paid.

1. Justices Biscoe and Pepper have delivered three judgments in the contempt proceedings, in all of which substantial periods of additional time were granted to the defendant for full compliance with the April 2010 orders of the court. That level of compliance was finally achieved yesterday.

1. I am satisfied on the evidence that the contempt was made out, but has been purged, and that the matter can be disposed of by payment of costs only.

1. The Council's costs for the contempt proceedings are estimated to be $17,500, but it is prepared to accept $12,000 in full settlement of that claim. These amounts are reasonable, and the Council is happy for the court to allow a generous period for payment. Ms Zhu has undertaken to the court that she will pay the amount in full within 12 months.

1. I, therefore, make the following orders:

1.The Council's Notice of Motion for contempt is adjourned to a date to be fixed, but not before 31 October 2013.

2.The defendant is ordered to pay in full the Council's costs to date of the contempt proceedings, in the sum of $12,000, by 31 October 2013.

3.In the event that the costs are paid in full on or before that date, the contempt proceedings are hereby dismissed without further order.

4.If the costs are not so paid by that date, the Council has liberty to apply to the Registrar to have the matter relisted.

1. I will publish these reasons later today, and I thank the interpreter for her valuable assistance.

Decision last updated: 09 October 2012