Bayside Council v Zein

[2023] NSWLEC 42

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bayside Council v Zein [2023] NSWLEC 42

Hearing dates:

3 April 2023

Date of orders:

14 April 2023

Decision date:

14 April 2023

Jurisdiction:

Class 4

Before:

Pain J

Decision:

See below in [55]

Catchwords:

CONTEMPT OF COURT – sentence – plea of guilty- wilful contempt in failing to comply with development control order over lengthy period – contrition and remorse accepted – fine imposed – imposition of periodic fine suspended to provide final opportunity to purge contempt

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), s 9.34

Civil Procedure Act2005 (NSW), s 26

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Local Government Act1993 (NSW), s 694

Uniform Civil Procedure Rules 2005 (NSW), r 23.8

Cases Cited:

Blacktown City Council v Jason Gabriel Saker (No 3) [2021] NSWLEC 148

Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80

Environment Protection Authority v Hanna [2013] NSWLEC 41

Georges River Council v Mifsud [2017] NSWLEC 113

Malass v Strathfield Municipal Council [2022] NSWLEC 131

PalerangCouncil v Banfield (No 2) [2012] NSWLEC 158

Category:

Sentence

Parties:

Bayside Council (Applicant)
Abbas Zein (Respondent)

Representation:

Counsel:
R Coffey (Applicant)
J Trevallion (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Applicant)
KDA Legal (Respondent)

File Number(s):

2020/155394

JUDGMENT on sentence

1. Bayside Council (the Council) has filed a notice of motion dated 21 July 2022 seeking an order that the Respondent Mr Zein be punished for contempt of court by way of conviction and fine.

2. The notice of motion and statement of charge relate to consent orders made on 4 March 2021 by the Court (Orders). The Orders concern Lots A and B in DP 316147, at 10 Oswell Street, Rockdale (Premises) which belong to Mr Zein. The Orders required certain works to be undertaken by specified dates, as addressed in detail below. Not all the works the subject of the Orders have been undertaken.

Background

3. Mr Zein is the registered proprietor of the Premises and is a licensed builder.

4. On 24 December 2015 complying development certificate no. 150105/01 was issued by Scott Hackett of Hackett Certification and Fire Consulting (CDC) to Mr Zein for the construction of a new two storey dwelling house and granny flat on the Premises.

5. The Council formed the view that work beyond that in the CDC had been carried out by Mr Zein and on 29 April 2019 it issued a development control order no. 3, 10 and 11 under Part 9 Division 9.3 s 9.34(1) of the Environmental Planning and Assessment Act 1979 (DCO).

6. On 25 May 2020 the Council commenced proceedings by way of summons seeking orders including, in summary:

1. that Mr Zein comply with the DCO; and

2. that Mr Zein carry out works sufficient to demolish all parts of the buildings at the Premises that had not been erected in accordance with the CDC and then carry out works so as to cause the buildings to comply so far as practicable with the CDC.

7. The Court ordered mediation pursuant to s 26 of the Civil Procedure Act2005 (NSW) which took place. On 4 March 2021 Justice Pepper made the Orders by consent of both parties.

Consent orders made on 4 March 2021

8. The consent orders made 4 March 2021 state (annexures omitted):

1. The Respondent, by himself, his servants or agents, is to carry out the following works at the Land (Lot A DP 316147 and Lot B DP 316147 known as 10 Oswell Street, Rockdale) within the time periods specified:

(a) demolition works in accordance with the plans prepared by ABCON dated 26 November 2020, job No. 20197, drawing numbers A01, A02, A04, A05, A06, AO7, A08, A09, A10, A11, A12, which are annexed to these Orders and marked "A" (ABCON Plans), in particular the works indicated in red/ red hatching on the said plans and "TO BE DEMOLISHED” on the legend of the said plans, within 150 days of the date of these Orders:

(b) new building works in accordance with the ABCON Plans, in particular the works indicated in purple/ magenta on the said plans and 'PROPOSED NEW WORK' on the legend of the said plans, within 150 days of the date of these Orders;

(c) tree planting and landscaping works in accordance with the plans annexed to these Orders and marked "B1" (Landscape Plan) and "B2" (Landscape Area), comprising drawing number A01 in the ABCON Plans with amendment and annotations in red, within 180 days of the date of these Orders;

(d) stormwater drainage works generally in accordance with the plans prepared by SGC, Project No. 20200320. Plan 1/3 'LOCALITY PLAN' drawing No. SW10C Revision C, Plan 2/3 'STORMWATER DRAINAGE DESIGN ROOF PLAN' Drawing No. SW201 Revision C and Plan 3/3 'STORMWATER DRAINAGE DESIGN DETAILS SHEET' drawing No. SW300 Revision C, dated 19 November 2020, which are annexed to thee [sic] Orders and marked "C", and as amended by these orders, within 150 days of the date of these Orders.

2. The works required by Order 1(a), (b), (c) and (d) must to be carried out in accordance with the conditions at Annexure "D" and "E" to these Orders.

3. Any cooking facilities located in the rumpus room, as shown on plan A04 of the ABCON Plans, must be removed within 28 days of the date of these Orders. No cooking facilities are permitted to be installed or used in the said rumpus room at any time.

4. The Respondent is to pay the Applicant's costs in the agreed sum of $15,000.00 within 28 days of the date of these Orders.

5. Liberty to restore on 3 working days' notice to vary the time period provided for in these Orders upon proper cause being shown.

9. Orders 1(a), (b) and (d) were required to be complied with by 2 August 2021 and Order 1(c) was required to be complied with by 1 September 2021. The works in Orders 1(a)-(d) must be carried out in accordance with Annexure D and E, which are conditions of the CDC which require certification of certain work be supplied to the Council within specified time frames.

Chronology

10. The parties helpfully agreed upon the following chronology of events since the DCO was issued to Mr Zein:

Date

Event

29 April 2019

Development Control Order issued to Mr Zein - works carried out otherwise than in accordance with Complying Development Certificate 150105/01.

25 May 2020

Council commences Class 4 Proceedings

25 June 2020

Directions made by Robson J in chambers regarding points of claim, points of defence and evidence.

4 August 2020

Matter listed for mediation on 20 August 2020.

20 August 2020

Mediation occurs before Commissioner Espinosa. Mediation adjourned to 23 September 2020.

6 September 2020

Orders made by Robson J on 25 June 2020 vacated.

23 September 2020

Further mediation occurs before Commissioner Espinosa. Mediation adjourned to 12 October 2020.

12 October 2020

Further mediation occurs before Commissioner Espinosa. Mediation adjourned to 11 November 2020.

11 November 2020

Further mediation occurs before Commissioner Espinosa. Mediation adjourned to 11 December 2020.

11 December 2020

Mediation concludes/ matter resolved To be listed before List Judge for Consent Orders.

15 December 2020

Matter listed for Class 4 directions hearing on 5 February 2021.

5 February 2021

Matter adjourned to 19 February 2021 before the List Judge.

19 February 2021

Matter adjourned to 5 March 2021 before the List Judge.

4 March 2021

Orders made by Pepper J by consent (Orders)

14 April 2021

Orders served on Respondent personally (with Penal Notice)

19 May 2021

HWL Ebsworth Lawyers (HWLE) writes to NY Lawyers (NY) in relation to detailed stormwater plans referred to in the Orders and compliance with the Orders

24 May 2021

HWLE received response from NY in relation to the Orders which included annexing stormwater plans

1 June 2021

HWLE sent NY an email in relation to the Orders, in particular providing feedback concerning the stormwater plans

18 June 2021

HWLE sent NY an email in relation to the Orders - following up regarding previous email regarding stormwater plans

22 July 2021

HWLE received an email from NY in relation to the Orders - including referring to seeking extension of time to carry out works

23 July 2021

HWLE sent an email to NY in relation to the Orders, including

- provided advice in relation to its understanding that State Government advice was that construction could recommence on 31 July 2021

- indicated Council would be open to agreeing to an extension but that of course a notice of motion to vary the Orders would be required

5 August 2021

HWLE received an email from NY in relation to the Orders, including outlining difficulties in relation to COVID construction restrictions and financial strain of Respondent

8 September 2021

HWLE received an email from NY in relation to the Orders, which included raising financial hardship by Mr Zein

3 December 2021

HWLE sent an email to NY in relation to the Orders - seeking update in relation to compliance with the Orders

6 December 2021

HWLE received an email from NY in relation to the Orders - including referring to notice of motion and needing instructions from client regarding time needed to complete works

15 December 2021

HWLE sent a letter via email to NY in relation to the orders - putting Respondent on notice in relation to breach of the Orders and potential proceedings for contempt of Court

16 December 2021

HWLE received an email from NY in relation to the Orders including attaching a draft notice of motion seeking in summary an extension of the timeframes to carry out works required by the Orders

23 December 2021

HWLE sent a letter by email to NY in relation to the Orders (automated email response received - SMS sent to Mr Zein 's solicitor)

Letter included putting Mr Zein on notice of Council's intention to commence proceedings for contempt of Court if the works had not been completed by 31 January 2022

17 January 2022

HWLE receives two emails from NY in relation to the Orders - includes advising instruction will be sought to ascertain when Mr Zein can commence works

HWLE sends NY an email in response confirming receipt and awaiting further urgent response

24 January 2022

HWLE received an email from NY in relation to the Orders - including advising of intention to provide further timeframe for carrying out of works

8 February 2022

HWLE received an email from NY in relation to the Orders which included stormwater plans

16 March 2022

HWLE received an email from NY in relation to the Orders in relation to stormwater plans

30 March 2022

HWLE sent an email to NY in relation to the Orders, in particular the stormwater plans (still not acceptable)

10 May 2022

HWLE received an email from NY in relation to the Orders including updated stormwater plans

12 May 2022

HWLE sent a letter to NY via email in relation to the Orders, advising:

- stormwater pans were acceptable

- Mr Zein in contempt of Court and it is in his interest to obey the orders and purge contempt;

- asking that evidence be provided that the works required by the orders have been carried out by 2 June 2022 otherwise contempt of Court proceedings would be commenced

16 May 2022

HWLE received an email from NY in relation to the Orders, including seeking instructions in relation to timeframes

25 May 2022

HWLE sent an email to NY in relation to the Orders, including advising that the Court orders must be obeyed and time for compliance is long overdue

30 May 2022

HWLE received an email to NY in relation to the Orders, including advising works not able to be completed by 2 June 2022 and seeking instructions regarding further timeframe

8 June 2022 at about 12:12pm

Mr Byrnes council officer attends at the Premises to conduct an inspection.

Observations made that the Orders had not been complied with. Photographs taken.

8 June 2022 at 5:16pm

HWLE received email from NY advising works have now commenced

17 June 2022

Mr Byrnes council officer attends at the Premises to conduct an inspection.

Observations made that the Orders had not been complied with. Photographs taken.

20 June 2022

Mr Byrnes council officer attends at the Premises to conduct an inspection.

Observations made that the Orders had not been complied with. Photographs taken.

27 June 2022

Mr Brown (HWLE) has telephone conversation with Mr Youssef (NY) including in relation to non-compliance with the Orders

6 July 2022

HWLE received an email from NY in relation to the Orders, including advising of instructions that significant progress made and works nearing completion

21 July 2022

Notice of Motion and Statement of Charge Filed

30 August 2022

Notice of Motion, Statement of Charge, Affidavit of Mr Brown dated 20 July 2022 personally served on Mr Zein

1 September 2022

Mr Byrnes council officer attends the Premises to conduct an inspection.

Observations made that the Orders had not been complied with. Photographs taken.

2 September 2022

Matter listed before Moore J. Mr Zein appears in person (Respondent's solicitor had filed notice of intention to cease to act)

Matter adjourned to 9 September 2022

8 September 2022

Matter adjourned to 16 September 2022 on the basis that Mr Youssef would continue to act but was not available on 9 September 2022.

15 September 2022

Matter adjourned to 21 October 2022.

Email from Mr Youssef solicitor to Moore J's Associate requesting that the matter be adjourned and relisted on 21 October 2022.

19 October 2022

Matter adjourned to 4 November 2022.

Email from Mr Youssef to Pepper J's Associate requesting that the matter be adjourned and relisted on 4 November 2022.

4 November 2022

Respondent enters plea of guilty to the Statement of Charge filed by the Applicant on 21 July 2022.

4 November 2022

Matter listed before Robson J. Orders made setting the matter down for hearing on sentence on 14 December 2022.

7 December 2022

Matter comes before Moore J for pre-trial mention.

Respondent's solicitor requests that the hearing be vacated on the basis that Mr Zein's wife is expecting a baby.

Matter relisted for further directions on 9 December 2022 and Respondent to pay the Applicant's costs thrown away as a result of vacation of the hearing on 14 December 2022.

9 December 2022

Duggan J made orders listing matter for hearing on 3 April 2023 and Council granted access to the property for the purpose of conducting an inspection of the works completed in accordance with the Court’s orders of 4 March 2021 the at the land known as 10 Oswell, Rockdale, pursuant to r 23.8(1)(a) of the UCPR.

14 March 2023

Moore J amended previous orders in chambers so that Council inspection to take place on 15 March 2023.

24 March 2023

Council files and serves:

-   Council's updated submissions

-   Affidavit of Mr McNally

-   Affidavit of Ms Bottazzini

-   Affidavit of Mr Elazar

-   Affidavit off Mr Brownbill

Evidence

Applicant’s Evidence

11. The Council read the following affidavits:

1. Mr Veitch process server affirmed 16 April 2021;

2. Mr Brown solicitor affirmed 20 July 2022;

3. Mr Byrnes environmental compliance officer employed at the Council affirmed 1 September 2022;

4. Mr McNally environmental compliance officer employed at the Council affirmed 24 March 2023;

5. Mr Elazar coordinator public domain and referrals employed at the Council affirmed 24 March 2023;

6. Ms Bottazzini landscape architect employed at the Council affirmed 24 March 2023; and

7. Mr Brownbill adjoining landowner affirmed 24 March 2023.

12. On 14 April 2021 Mr Veitch served the following documents on Mr Zein:

1. Letter from HWL Ebsworth Lawyers dated 12 April 2021; and

2. Order including the penal notice and annexures entered by the Court on 5 March 2021 between the Council and Mr Zein.

13. Mr Brown’s affidavit annexes the consent orders made 4 March 2021 and sets out correspondence between the Council and Respondent and their legal representatives.

14. Mr McNally’s affidavit identifies that as at 15 March 2023 the demolition and reconstruction works required by Orders 1(a) and (b) and Annexure 'A' of the Orders had not been completed.

15. Ms Bottazzini’s affidavit identifies that as at 15 March 2023 the landscaping works required by Order 1(c) and Annexures 'B1' and 'B2' of the Orders had not been completed.

16. Mr Elazar’s affidavit identifies that as at 15 March 2023 the stormwater drainage works required by Order 1(d) and Annexure 'C' of the Orders (and conditions 3 - 5 of Annexure ‘E’ to the Orders) had not been completed, nor had documentation required by the orders been provided to Council.

17. Mr Brownbill’s affidavit sets out stormwater impacts to a property in Holland Avenue in recent rain events. The property lies to the south/ south-west of the Premises, and is downhill from the Premises. Stormwater impacts have not previously been experienced on that property.

18. The Council tendered Bureau of Meteorology rainfall data for the area subject to the proceedings from the years 2021, 2022 and 2023 (Ex A).

Respondent’s Evidence

19. Mr Zein affirmed an affidavit 31 March 2023 that was read. Mr Zein detailed the following reasons for non-compliance with the Orders:

1. Lack of availability of experts and trades persons to carry out the works and provide certification;

2. Difficulty in obtaining finance to complete the works and obtain the required certificates;

3. COVID-19 delay caused by the NSW Government’s health orders and restrictions arising from COVID-19, including lockdowns of the whole construction industry; and

4. Rain delays, there were 162 rain days in 2021 and 196 rain days in Sydney in 2022.

20. Mr Zein has been in default of two loans to a large bank since on or about 25 February 2021. On 28 February 2022, the bank filed a statement of claim in the District Court of NSW in which Mr Zein was listed as the first defendant for an amount of $405,348.88 plus interest and costs. Since defaulting on the loans Mr Zein has had difficulty refinancing or borrowing further funds. Mr Zein and the bank agreed on a settlement sum to be paid by 18 May 2023. Mr Zein has entered into a contract for sale on 21 March 2023 to sell a property located in Marco Road, Panania to pay the settlement sum.

21. On or about 16 December 2021, Mr Zein attempted to seek agreement to an extension of time to comply with the orders from the Council which was refused. Between January and July 2022 Mr Zein’s then solicitor and the Council corresponded about the progression of works including the submission of diagram and drawings for Council’s approval.

22. Mr Zein has completed or partially completed some works in accordance with the Orders as set out below in [27]. He is aware that landscaping works and further works to the stormwater and other issues identified in the council officers’ inspection on 15 March 2023 still need to be undertaken. The increased cost of building materials has not assisted the completion of outstanding items.

23. Mr Zein is 42 years of age and a director of a company known as Quick and Quality Construction. He is married with four children aged between 3 months and 14 years old. His spouse does not work. Mr Zein earns approximately $20,000 on average before tax each month. His mortgage payment each month is approximately $6,500.

24. On or about 14 January 2021 Mr Zein pleaded guilty to an offence of drive vehicle under the influence of drugs along with an offence of possession or attempt to possess prescribed restricted substance. Mr Zein as a juvenile also pleaded guilty for an offence in respect of driving with another person’s licence.

25. Mr Zein intended to comply with the Orders. He understood his responsibility to comply with the Orders and takes full ownership for his failure to do so. Mr Zein apologised for the continued delay and expressed his remorse to the Court and to the Council. Mr Zein is confident he will be able to complete the balance of the works in accordance with the Orders, should the Court grant him a further 60 days to do so.

20. I note that Mr Zein does not dispute any of the matters referred to in the Council’s affidavits or the factual matters identified in the Council’s written submissions.

Council’s submissions

27. The Orders were made some two or more years ago and there has been a failure to comply with these over a lengthy period. Further work is required in relation to demolition and building works, landscaping works and stormwater drainage works which is either not done or has not been carried out in accordance with the required conditions of the CDC as follows:

Works that have been completed in accordance with the Orders.
#	Task	Ref to consent orders	Due date
1.	Pergola at ground level has been removed in accordance with drawing no. A04	Order 1(a)	2 August 2021
2.	The rear first floor balcony enclosure has been removed in accordance with drawing no. A09	Order 1(a)	2 August 2021
3.	The roof above the first-floor has been demolished in accordance with drawing no. A08	Order 1(a)	2 August 2021
4.	Internal works - except that the rear wall on the first floor had been constructed with lightweight cladding material and no window had been constructed in bedroom 3. (See also Works that have been completed not in accordance with the Consent Orders point 1)	Order 1(a) and Order 1(b)	2 August 2021
5.	Concrete kerb on the rear boundary has been constructed	Order 1(d) and the agreed detailed stormwater plans required by Order 2 Annexure E, Condition 3	2 August 2021
Works/actions that have not been completed.
#	Task	Ref to consent orders	Due date
1.	The kitchenette along the western wall of lower-ground floor has not been demolished as required by drawing no. A04	Order 1(a)	2 August 2021
2.	The internal opening between the rumpus room and the stairwell had not been constructed as shown on drawing A04	Order 1(a)	2 August 2021
3.	The brick balustrade around the enclosed balcony area had not been removed and the proposed sheet metal roofing had not been removed and the proposed sheet metal roofing has not been built as required by drawing No. A08	Order 1(a) and 1(b)	2 August 2021
4.	The 1500L rainwater tank required to be installed for the granny flat at the rear of the property has not been installed	Order 1(d) and the agreed detailed stormwater plans required by Order 2 Annexure E, Condition 3	2 August 2021
5.	There is no evidence of rainwater harvesting or first flush devices for the main dwelling or the granny flat have been installed	Order 1(d) and the agreed detailed stormwater plans required by Order 2 Annexure E, Condition 3	2 August 2021
6.	Landscape area in the rear yard of front dwelling is not in accordance with landscape area in plan B2. Plant screening shrubs are not supplied in the deep soil area on the western side of property	Order 1(c)	1 September 2021
7.	Deep soil area in rear yard of secondary dwelling is reduced due to the construction of concrete structure not in accordance with stormwater plans	Order 1(c)	1 September 2021
8.	Rainwater tanks located parallel to the front boundary are not in accordance with the Orders. As a result of the rainwater tanks there is insufficient space for the tree in the front setback to develop in adequate shape	Order 1(c)	1 September 2021
9.	Screening shrubs along western side setback of the rear yard cannot be planted as soil is unavailable	Order 1(c)	1 September 2021
10.	Planting required in the rear yard of the secondary dwelling has not been planted as required	Order 1(c)	1 September 2021
11.	Mr Zein has not provided Work as Executed Drawings prepared by a registered surveyor to Council	Order 2 Annexure E, Condition 4	2 August 2021
12.	Inspection and Certification by a practising Drainage Engineer detailing corrective/outstanding works have not been provided	Order 2 Annexure E, Condition 4	2 August 2021
13.	An application for a positive covenant covering the stormwater pump out system has not been registered	Order 2 Annexure E, Condition 5	2 August 2021
Works that have been completed not in accordance with the Consent Orders
#	Task	Ref to consent orders	Due date
1.	Internal works - except that the rear wall on the first floor had been constructed with lightweight cladding material and no window had been constructed in bedroom 3. (See also Works that have been completed not in accordance with the Consent Orders point 1)	Order 1(a) and Order 1(b)	2 August 2021
2.	Rainwater tanks with 4000L capacity have been installed for the main dwelling. The tanks are not located in accordance with the stormwater plans. Rainwater tank was to be installed along the eastern side boundary but are instead along the front (northern) boundary	Order 1(d) and the agreed detailed stormwater plans required by Order 2 Annexure E, Condition 3	2 August 2021
3.	The abovementioned tanks were to be designed to discharge into a junction pit with sealed lid located within the front setback. Instead, the constructed pit is an open grate with a pump out to the street kerb and gutter	Order 1(d) and the agreed detailed stormwater plans required by Order 2 Annexure E, Condition 3	2 August 2021
4.	A 1.0m wide concrete Dish Drain has been constructed as an overland flow path instead of the required 1.0m wide and 400mm deep Swale drain depicted in the Stormwater Plans	Order 1(d) and the agreed detailed stormwater plans required by Order 2 Annexure E, Condition 3	2 August 2021
5.	Swale planting as depicted in Stormwater plans has not been done. Instead there is a concrete structure that drains the water to the west of the property	Order 1(d) and the agreed detailed stormwater plans required by Order 2 Annexure E, Condition 3	2 August 2021
6.	Street trees have not been planted as specified in Landscape Plan. Trees have been planted in 45 litres pot size instead of 100 litres	Order 1(c)	1 September 2021
7.	Concrete slab under two 2000 litre rainwater tanks, reducing the landscape area present in the front setback - this is not in accordance with the orders	Order 1(c)	1 September 2021

28. Mr Zein’s contempt of court is wilful in the circumstances, meaning more than casual, accidental or unintentional, not contumacious. The length of time since the Orders were made on 4 March 2021 renders the contempt serious. Nor has Mr Zein purged his contempt despite having time to do so since these contempt proceedings were commenced on 21 July 2022. Mr Zein was aware of the consequences of his actions, as can be seen in correspondence between the parties’ respective solicitors referred to in the chronology above in [10]. No real attempt to comply with the Orders was made until 24 January 2022, more than six months after the date that compliance was due to be completed.

29. Mr Zein did not enter a plea of guilty at the earliest opportunity, proceedings commenced on 21 July 2022 and a plea of guilty was entered on 4 November 2022.

30. A positive finding of good character should not be made.

31. General and specific deterrence are relevant considerations given that Mr Zein is a licensed builder, the contempt concerns unlawful building works and he has been put on notice on multiple occasions of the failure to comply with the Orders over a lengthy period.

32. Limited weight should be given to the financial pressure asserted by Mr Zein. He has been slow to sell his other property which enables him to complete the necessary works and only moved to do so when NAB commenced debt recovery proceedings. Mr Zein earns a substantial income and has financial capacity to comply with the orders.

33. Comparable cases are Palerang Council v Banfield (No 2) [2012] NSWLEC 158 (Banfield (No 2)); Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80 (Saker (No 4)) and Malass v Strathfield Municipal Council [2022] NSWLEC 131 (Malass).

Respondent’s submissions

34. Mr Zein accepts that the contempt is wilful. His personal and financial circumstances are outlined in his affidavit. He has expressed his contrition and remorse in his affidavit and has pleaded guilty. He has not financially benefitted from the contempt. He did complete some of the work required by the Orders. The failure to comply resulted from Mr Zein’s financial position, plus rainy weather and COVID restrictions (to a lesser extent).

35. This matter is less serious than the cases relied on by the Council.

36. Mr Zein is confident that if any periodic fine is suspended for 60 days he will be able to purge the contempt and asks for that opportunity. This approach was not opposed by the Council.

Consideration

37. As I stated in Georges River Council v Mifsud [2017] NSWLEC 113 (Mifsud) at [22]-[23], [25]:

22.   As identified in Pt 55, r 13(1) of the SC Rules contempt of court is punishable by fine or imprisonment or both. I will be considering an appropriate fine in this case. Contempt of court can be described as technical, wilful or contumacious. Technical contempt is casual, accidental or unintentional. Wilful contempt occurs where there is deliberate disobedience without the intention of defying the court’s authority. Contumacious contempt occurs if there is an element of deliberate defiance of the court’s order, as identified in Hutley v Cosco [2016] NSWLEC 15 at [14] citing Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147 at [22]-[25].

23.   In Owners Strata Plan 37762 v Pham (No 2) [2007] NSWLEC 306 at [20] I set out 10 factors relevant to sentencing for contempt as identified in Wood v Staunton (No 5) (1996) 86 A Crim R 183 per Dunford J at 185:

1.   the seriousness of the contempt proved;

2.   whether the contemnor was aware of the consequences to himself of what he did;

3.   the actual consequences of the contempt on the relevant trial or inquiry;

4.   whether the contempt was committed in the context of serious crime;

5.   the reason for the contempt;

6.   whether the contemnor has received any benefit by indicating an intention to give evidence;

7.   whether there has been any apology or public expression of contrition;

8.   the character and antecedents of the contemnor;

9.   general and personal deterrence; and

10.   denunciation of the contempt.

…

25. As to whether the sentencing considerations in s 21A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) apply in these proceedings, I note the following comments of Robson J in Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 at [19]:

Whilst there is fertile ground for debate as to whether the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’) applies to civil contempt proceedings (see Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280 at [15] (Meagher JA)), it has been applied generally (see Hutley at [32] (Pain J); Re Mycorp Pty Ltd [2014] NSWSC 1180 at [4] (Black J)) and by analogy (see Queanbeyan City Council v Sun (No 2) (2013) 195 LGERA 14; [2013] NSWLEC 64 at [17] (Biscoe J) (‘Queanbeyan’)). As such, I consider that the Sentencing Act at least provides guidelines to the Court when it is considering civil contempt.

…

38. While not directly applicable to sentencing for this civil contempt, the Crimes (Sentencing Procedure) Act 1999 (NSW) is a useful guide to relevant matters. No aggravating matter in s 21A(2) has been referred to by the Council.

Seriousness of the contempt

39. Considering the objective seriousness of the contempt, for the reasons given by the Council, the contempt is wilful and serious given the length of time that Mr Zein has failed to comply with the Orders made on 4 March 2021. Mr Zein has yet to complete the necessary works over two years later. The itemised list of outstanding works are identified in the table above in [27]. Mr Zein could have arranged his financial affairs to ensure he had sufficient funds to undertake the work earlier by selling the property in Panania which he is currently selling. The lengthy delay is not otherwise explained by rainy weather and COVID-19 restrictions.

Consequences of contempt

40. The failure to complete the required stormwater works has had an adverse impact on Mr Zein’s neighbour’s land as identified in the affidavit of Mr Brownbill summarised above in [17].

Awareness of contempt

41. Mr Zein was served personally with the Orders which included a penal notice. The lengthy correspondence between the Council’s solicitor and Mr Zein’s solicitor from 19 May 2021 to 6 July 2022 is identified in the chronology above in [10]. Mr Zein was aware that he was in contempt of the Orders.

Plea of guilty

42. Some discount for the plea of guilty is warranted albeit the plea was not entered at the earliest opportunity. There is utilitarian value in the plea being entered.

Contrition and remorse

43. Mr Zein did plead guilty and has sworn an affidavit attesting to his contrition for the contempt.

Personal antecedents

44. Mr Zein’s affidavit attests to his personal circumstances as a father of four children and sole income provider for his family.

Good character

45. Mr Zein has attested to previous convictions in matters that are not environmental or planning in nature. No personal character references have been provided. I will not draw any positive finding in relation to good character in these circumstances. Nor do I draw any negative conclusion, effectively the matter is neutral in my evaluation of the appropriate sentence.

Deterrence

48. Compliance with orders issued by the Court is essential in order for the administration of justice to be served. General deterrence is an important consideration in this context. As I stated in Mifsud at [41]:

Deterrence

41.   It is important to consider deterrence generally in relation to contempt of court orders. The underlying purpose of the exercise of the power of the Court to punish for contempt is to protect the effective administration of justice by demonstrating that the Court's orders will be enforced. Kirby J in Pelechowski v Registrar of the Court of Appeal (1999) 198 CLR 435; [1999] HCA 19 at [149] described it as follows:

Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, "serious and lasting damage to the fabric of the law may result" [Registrar, Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 318; R v Sergiou (1983) 5 Cr App R (S) 227]. Obviously, the culpability of the contemnor is relevant to the order which must be made [Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98]. The contemnor must then be punished in an emphatic way. He or she must be deterred effectively from any temptation to re-offend. However, the focus of attention is not solely on the contemnor. It is also addressed to the community at large and to any others who might consider acting in a similar manner.

…

49. Specific deterrence is also relevant given that Mr Zein is a licensed builder and the works in issue are unlawful building works.

Even-handedness

50. In Environment Protection Authority v Hanna [2013] NSWLEC 41 I stated at [69]:

69. As contempt is a common law offence there is no statutorily defined maximum penalty. The consideration of similar offences where these exist can assist in sentencing in a principled and proportionate way although I note contrary observations in the Sentencing Bench Book, Judicial Commission of NSW at [20-155] on p 9540 - 9541, "No tariff of sentences for contempt" due to the great variation in circumstances giving rise to a charge of contempt. The Court has generally imposed a fine as a penalty in contempt proceedings…

51. Some assistance may be gained from considering other cases mindful that factual circumstances concerning contempt are likely to vary substantially. In Banfield (No 2) the respondent was fined $16,600 plus $2,000 for each calendar month the defendant continued not to be comply with the orders. The periodic fine was suspended to provide the respondent an opportunity to comply with the orders by a set date. The respondent had continued to occupy a shed without development consent and had not demolished the shed in breach of Court orders made by consent. The Court characterised the contempt as wilful and deemed it had a moderate objective seriousness. The contempt caused no actual environmental harm. A 15% discount was applied for a late plea of guilty on commencement of the hearing. General and specific deterrence needed to be achieved by the penalty and the Court accepted the defendant had limited capacity to pay a substantial fine. The defendant was of good character, had no antecedents and expressed remorse for the contempt.

52. Following a hearing on liability, the Court found the respondent guilty of contempt in Blacktown City Council v Jason Gabriel Saker (No 3) [2021] NSWLEC 148. In Saker (No 4) the respondent was sentenced for failing to engage a suitably qualified person to prepare a Waste Removal and Remediation Plan for land and provide that plan to the relevant Council as ordered by the Court. A $40,000 monetary penalty was imposed in addition to a periodic fine of $10,000 to be paid monthly until the contempt was purged. The periodic fine was suspended to provide an opportunity for the contempt to be purged. For sentencing the contempt was characterised as wilful and contumacious and had a moderate objective seriousness. The contempt was committed without regard to public safety and caused actual and potential ongoing environmental harm. General and specific deterrence was accounted for in the penalty, as well as the lack of remorse, apology and acknowledgement of wrongdoing by the respondent. The respondent was considered highly likely to reoffend and had an extensive criminal record.

53. In Malass the respondent was fined the sum of $20,000 for significant development work undertaken on her property in breach of orders made by the Court. The contempt was wilful and serious. A guilty plea, general and specific deterrence and her apology were taken into account in the sentencing. The Court accepted she would otherwise be regarded as a woman of good character.

Capacity to pay a fine

54. Mr Zein provided some financial details in his affidavit concerning his gross income and mortgage payments. This is an incomplete statement of his financial affairs, for example no tax records were provided. It is difficult to make an assessment of his capacity to pay a fine in these circumstances.

Conclusion on penalty

55. The appropriate penalty in all the circumstances considered above is $20,000 with a periodic fine of $3,000 per month. The periodic fine will be suspended for a period of 60 days to enable Mr Zein one last opportunity to purge the contempt.

Costs

56. The parties have agreed that Mr Zein will pay the Council’s costs in the amount of $40,000.

Orders

57. The Court makes the following orders:

1. Mr Zein is found guilty of the charge of contempt as identified in the notice of motion and statement of charge dated 21 July 2022.

2. Mr Zein is ordered to pay a fine in the sum of $20,000. The fine is to be paid to the Registrar of the Court within 28 days of the date of this judgment, for payment to the Council pursuant to s 694 of the Local Government Act1993 (NSW).

3. Mr Zein is fined $3,000 per calendar month, with the first payment to be paid on 20 June 2023 and monthly (28 days) thereafter so long as the final orders of the Court made on 4 March 2021 continue not to be complied with.

4. Order (3) above is suspended for a period of 60 days after the publication of this judgment.

5. Pursuant to r 23.8(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) the Council is granted access to the property known as 10 Oswell Street, Rockdale for the purpose of conducting an inspection of the works required by the Orders, with the inspection to be on the following basis:

1. such inspection includes the taking of photographs of the areas of the land upon which works are required to be completed by the Orders;

2. such inspection is to take place between 14 June 2023 and 19 June 2023, between 10.00am and 2.00 pm, with:

1. the time commencing to run upon the entry onto the Property by any Council officer;

2. 24 hours' notice to be given of the date of the inspection by the Council to Mr Zein; and

3. further to (ii) above, the Council is to notify Mr Zein of the names of the Council officers and/ or its agents who will be present at the inspection.

6. Following the inspection referred to in Order (5) the Council is to notify the Court and Mr Zein as to whether the Orders have been complied with no later than 19 June 2023. If the Orders have been complied with Order (3) is permanently suspended.

7. The parties have liberty to restore the matter before the Court on 3 days' notice in the event of any dispute in relation to Order (6) above and whether the Orders have been complied with.

8. Mr Zein is to pay the Council’s costs of the contempt proceedings in the sum of $40,000 within 4 months of the date of this judgment.

9. All previous costs orders are vacated.

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Decision last updated: 17 April 2023