Blacktown City Council v Pearce

[2013] NSWLEC 175

Land and Environment Court

New South Wales

Medium Neutral Citation:	Blacktown City Council v Pearce [2013] NSWLEC 175
Hearing dates:	1 October 2013
Decision date:	01 October 2013
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	Orders as set out at [22]
Catchwords:	CIVIL ENFORCEMENT - contempt of court - failure of respondent to comply with Court orders regarding fencing of land, demolishing of buildings, removal of demolition materials and payment of the council's costs - respondent guilty of contempt as charged - lump sum fine and monthly fine imposed - monthly fine discharged if court orders complied with - order to remedy ongoing breaches to purge contempt - respondent to pay the council's costs on the motion for contempt as agreed or assessed on an indemnity basis
Cases Cited:	Blacktown City Council v Pearce [2012] NSWLEC 270
Category:	Principal judgment
Parties:	Blacktown City Council (Applicant) Leonard Brian Pearce (Respondent)
Representation:	Mr S B Nash with Mr A Isaacs (Barristers) (Applicant) Dr S M Berveling (Barrister) (Respondent) Bartier Perry Lawyers (Applicant) A R Walmsley & Co (Respondent)
File Number(s):	40346 of 2012
Publication restriction:	No

Judgment

1. On 30 October 2012, I ordered Mr Pearce, who is the owner of residential land at 141 Piccadilly Street, Riverstone, to vacate the premises; fence the property to prevent intruders; demolish the buildings on the property; and remove and lawfully dispose of the demolition materials. The vacating and fencing of the property were ordered to be done forthwith and the demolition and removal of materials were ordered to be done within 120 days of my orders being made. I also ordered that Mr Pearce pay Blacktown City Council's costs of the proceedings in the agreed sum of $6,000 within 60 days of my orders: see Blacktown City Council v Pearce [2012] NSWLEC 270 at [21].

1. Mr Pearce did vacate the premises but he did not comply with any of the other orders, notably fencing the land, demolishing the buildings, removing the demolition materials, or paying the Council's costs by the due dates.

1. The Council alleges that Mr Pearce's failure to comply with the Court's orders constitutes contempt in connection with the proceedings. The Council has applied, by notice of motion in the proceedings filed on 25 June 2013, for Mr Pearce to be punished for the contempt. The Council filed, also on 25 June 2013, with the notice of motion a statement of charge in a separate document. The statement of charge specified, with sufficient particularity, the contempt of which Mr Pearce was alleged to be guilty, namely, failing to comply with orders 5, 6, 7, 8, 9 and 10 of the Court's orders made on 30 October 2012.

1. The Council filed evidence in support of the contempt charge in the form of two affidavits. The first was by the Council's solicitor, Mr D Loether, sworn 14 June 2013 and the second by a council officer, Ms D Relph, sworn 18 June 2013. Ms Relph states that she had received complaints from nearby residents about the noncompliance with the Court's orders and that she had inspected the property on 12 March 2013 and observed that no further clearing of vegetation had been undertaken and that the dilapidated dwelling remained on the site.

1. The Council served the notice of motion, statement of charge and two affidavits on Mr Pearce personally.

1. The notice of motion was originally first returnable before the Court on 5 July 2013 but this was vacated and relisted for 12 July 2013. On 12 July 2013, the Council and Mr Pearce appeared by their legal representatives before the Registrar. A hearing for the notice of motion for contempt was fixed for today, 1 October 2013, with a direction that a timetable be set by eCourt by 6 July 2013.

1. On 17 July 2013, Mr C Bryett of AR Walmsley & Co, solicitors, filed a notice of appearance for Mr Pearce.

1. There was a delay in setting the timetable preparing the matter for hearing. On 2 August 2013, the Council, by another notice of motion, sought leave to rely on an amended notice of motion and an amended statement of charge in the forms annexed to Mr Loether's affidavit of 2 August 2013. The essential differences were that the Council no longer alleged that Mr Pearce had failed to comply with orders 7 and 9, so that the orders which the Council alleged Mr Pearce had disobeyed were now alleged to be orders 5, 6, 8 and 10.

1. Eventually, on 8 August 2013, the Registrar made orders in terms of the short minutes of order filed in court. The Council appeared by its barrister who also mentioned the matter on behalf of Mr Pearce's solicitor. The Registrar also granted the Council leave to file and serve the amended notice of motion and amended statement of charge by 12 August 2013. The Council dutifully filed and served the amended notice of motion and the amended statement of charge on 12 August 2013.

1. The Council filed a further affidavit of Ms Relph sworn 15 August 2013 in which Ms Relph again states that she had received complaints from nearby residents about the premises and about Mr Pearce's noncompliance with the Court orders; she inspected the premises on 12 March 2013 and observed that Mr Pearce had not secured the property by perimeter fencing in a manner that would not permit intruders; the buildings on the property had not been demolished and the materials on the property had not been removed; and she inspected the premises again on 18 June 2013 and made the same observations as she had made on 12 March 2013.

1. At the hearing of the notice of motion today, Mr Pearce is represented by counsel, Dr Berveling, instructed by Mr Bryett, solicitor.

1. The Council read the affidavits of Ms Relph of 18 June 2013 and 15 August 2013, the effect of which I have summarised above, tendered a bundle of documents including my judgment, the Court's orders, the amended notice of motion and the amended statement of charge. Mr Nash, counsel for the Council, said that he was instructed that the Council had received a bank cheque in the sum of $6,000 last Friday that was likely to have been sent by Mr Pearce but they had not been able to verify that it was from Mr Pearce's bank account.

1. Dr Berveling called Mr Pearce to give oral evidence. Mr Pearce confirmed that:

• He is the owner of 141 Piccadilly Street, Riverstone.

• He had engaged Mr David Sayer, solicitors, to act for him in the proceedings that were heard and determined by me on 30 October 2012.

• Before the hearing, he had discussions with Mr Sayer about what should happen at the property and had agreed on the consent orders that I ultimately made on 30 October 2012.

• He did not have discussions with Mr Sayer after the hearing but he did receive a copy of the Court orders that I made on 30 October 2012.

• He knew what works he had to do under the Court orders.

• He engaged a contractor to remove materials from the property and the contractor had filled three small skip bins but did not finish the job.

• He had done some further work after the contractors left but then he had a mild stroke in November 2012 and was not able to do more work.

• His wife was sick for the last 12 months with heart disease and passed away a few weeks ago.

• There is a lot of furniture and effects in the house (throughout six rooms) of sentimental value because they are of his wife, parents and grandparents, which Mr Pearce wants to save.

• He is "very, very sorry" that the job never got completed as ordered by the Court.

• He had obtained and posted to the Council on Thursday last week a St George Bank cheque for $6,000 in satisfaction of order 10 of the Court orders.

• The Council and Mr Pearce have now agreed on orders for punishment of the contempt being:

• a finding that Mr Pearce is guilty of contempt as charged in the amended notice of motion and amended statement of charge;

• a fine of $5,000;

• a further fine of $2,000 per month, the first payment to be made on 2 December 2013 and monthly thereafter for so long as Mr Pearce has not complied with orders 5, 6 and 10;

• an extension of the time for compliance with orders 5, 6 and 10 to 1 December 2013;

• discharging of the order imposing the monthly fine if Mr Pearce purges his contempt by complying with orders 5, 6 and 10; and

• Mr Pearce paying the Council's costs of the motion for contempt on an indemnity basis.

1. Mr Pearce gave evidence that understood these orders and agreed to abide by them. Upon being asked whether he could do the outstanding works required by orders 5 and 6 by the suggested time of 1 December 2013, Mr Pearce said that he would need to, first, sort through the furniture and effects in the house to select the special furniture of high sentimental value that he wanted to keep, secondly, arrange for an antique dealer to attend the house to select and then sell the more valuable pieces, and thirdly, dispose of the other furniture and effects. Mr Pearce said he needed about four weeks to do this work.

1. In relation to demolition of the buildings on the property and fencing, Mr Pearce said that his solicitor, Mr Bryett, had obtained in the last few weeks three quotations from demolition contractors ranging from around $19,000 to $22,000 to demolish the building and remove and lawfully dispose of the demolition materials. He also noted that they would need to obtain the necessary Workcover permits before starting the work and that the fencing would need to be done before this demolition work started. Mr Pearce estimated that this work could be done in a further two months. Mr Pearce therefore estimated the overall time he would need to complete the works would be around three months. Taking into account the Christmas/January period during which building work traditionally is not able to be undertaken, he would need until 4 February 2014 to complete the works.

1. After Mr Pearce gave this evidence, the Council agreed to extend the time proposed in the orders from 1 December 2013 to 4 February 2014.

1. I find on the evidence that Mr Pearce is in breach of the Court's orders made on 30 October 2012 in the respects charged in the amended notice of motion and the amended statement of charge in that Mr Pearce has failed to fence the property as required by order 5 in the 120 day time period required by order 8; to demolish the buildings and remove and lawfully dispose of the demolition materials as required by order 6 in the 120 day time period required by order 8; and to pay the Council's costs in the sum of $6,000 within the 60 day time period as required by order 10. The noncompliance with orders 5 and 6 is continuing. However, I am satisfied that it is highly likely that Mr Pearce has now paid the Council's costs in the sum of $6,000 and hence the noncompliance with order 10 would not be continuing. Nevertheless, I would still enlarge the time by which Mr Pearce is required to comply with order 10 to be cautious.

1. I find that Mr Pearce knew of the making of the Court's orders, what was required to be done under the orders, and the time period by which the work had to be done under the orders. Although Mr Pearce did comply with the order that he vacate the premises and he attempted to comply with the order that he remove certain materials from the property, he did not otherwise try to comply with the orders that he fence the property, demolish the buildings and remove and lawfully dispose of the demolition materials, and pay the Council's costs by the due dates. Mr Pearce has given an explanation associated with his and his wife's ill health for his noncompliance.

1. Mr Pearce has expressed his contrition at not complying with the orders. He has now paid the Council's cost in compliance with order 10. He has also undertaken to comply with orders 5 and 6 within the new timetable.

1. I consider the parties' agreed orders to be appropriate in the circumstances of this case. A penalty of a fine is appropriate punishment for the contempt in this case and the amount submitted of $5,000 is appropriate as a total for all of the charges. The imposition of a fine of $2,000 per month is appropriate in order to secure compliance with the court orders but, as the parties agree, it should be discharged if Mr Pearce purges his contempt by complying with the outstanding orders by the extended date for compliance of 4 February 2014.

1. In the circumstances of this case, it is appropriate for the Council to be compensated for bringing the contempt proceedings by an order for costs on an indemnity basis.

1. For these reasons, I make the following orders:

(1)   The Respondent is found guilty of contempt by failing to do the works required by orders 5 and 6 within the time period required by order 8 of the orders made by this Court in Blacktown City Council v Pearce [2012] NSWLEC 270 on 30 October 2012 ('the Court orders'), and by failing to pay the sum within the time required by order 10 of the Court orders, as charged in the Amended Statement of Charge filed on 12 August 2013.

(2)   The Respondent is fined a sum of $5,000, payable to the Registrar of the Court, within 28 days.

(3)   The Respondent is fined a sum of $2,000 per calendar month, payable to the Registrar of the Court, the first payment to be made on 5 February 2014 and monthly thereafter for so long as orders 5, 6 and 10 of the Court orders are not complied with or otherwise varied.

(4)   Extend the time for compliance with orders 5, 6 and 10 of the Court orders until 4 February 2014.

(5)   Order 3 is discharged if the Respondent purges his contempt by complying with orders 5, 6 and 10 of the Court orders by 4 February 2014.

(6)   The Respondent is to pay the Applicant's costs of this motion for contempt as agreed or assessed on an indemnity basis.

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Decision last updated: 16 October 2013