Georges River Council v Stojanovski (No 2)
[2019] NSWLEC 53
•15 April 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Georges River Council v Stojanovski (No 2) [2019] NSWLEC 53 Hearing dates: 15 April 2019 Date of orders: 15 April 2019 Decision date: 15 April 2019 Jurisdiction: Class 4 Before: Sheahan J Decision: See Orders in paragraph [20]
Catchwords: CONTEMPT: Disobedience of the Court’s orders that certain works carried out without necessary consent be demolished. Legislation Cited: Environmental Planning and Assessment Act 1979
Uniform Civil Procedure Rules 2005Cases Cited: Georges River Council v Stojanovski [2018] NSWLEC 125
Lismore City Council v Vivian [2016] NSWLEC 108Category: Principal judgment Parties: Georges River Council (Applicant)
Steven Stojanovski (First Respondent)
Robert Stojanovski (Second Respondent)Representation: Counsel:
Solicitors:
Mr N Eastman, barrister (Applicant)
N/A (Respondents)
Lindsay Taylor Lawyers (Applicant)
One Group Legal Pty Limited (Respondents)
File Number(s): 2018/99739
Judgment
Introduction
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This judgment deals with a charge of contempt of Court.
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Neither Respondent appeared on 21 August 2018 when Pepper J heard the substantive Class 4 proceedings, delivered judgment and pronounced orders against the 1st Respondent, in respect of development work he had done without consent: Georges River Council v Stojanovski [2018] NSWLEC 125.
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Pepper J was satisfied of the relevant breach of the Environmental Planning and Assessment Act 1979 (at [28]), and Her Honour considered discretionary issues (at [30]), before making relevant declarations and orders (at [31]), including an order for demolition/removal.
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The orders were served upon the 1st Respondent, and a series of inspections since have revealed no sign of any effort to comply with them.
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Council brought a Notice of Motion ("NOM") on 30 October 2018, alleging that the 1st Respondent was guilty of contempt of Pepper J's orders.
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Council has today demonstrated (in reliance upon two affidavits from Council's solicitor Carlo Zoppo, and one from Council officer Ryan Asplet) that the relevant "buildings remain, and continue to be used for a residential purpose" (see Council's subs par 17).
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The 1st Respondent again did not appear today, to face the charge, when the NOM came on for hearing.
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He does, however, have a solicitor acting for him (Mr Michael Ayache), and has had counsel, as amicus, appear at two pre-trial directions hearings.
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When there was no appearance on his behalf when the case was called this morning, I granted Council leave to proceed in his absence, but I am satisfied that he was clearly on full notice of today's proceedings and of the risk that Council might secure adverse findings and orders, in his continued absence.
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On the evidence, including extensive photographic evidence, the 1st Respondent is clearly in contempt of Pepper J's orders.
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However, it is still possible for his contempt to be purged.
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With that as its objective, Council asked the Court to find the 1st Respondent guilty of the contempt charge, and make further orders directed to remediation, but not proceed with punishment of the 1st Respondent at this point.
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The orders Council seeks include one for "substituted performance", in the event that the unlawful structures are not demolished within a further 28 days: see Rule 40.8 of the Uniform Civil Procedure Rules 2005, and e.g., Pain J in Lismore City Council v Vivian [2016] NSWLEC 108.
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Mr Zoppo put on a second affidavit, affirmed this morning, in which he deposes to various communications with Mr Ayache, his office, and with the 1st Respondent, personally, since 4 April 2019.
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Clearly, Mr Ayache advised the 1st Respondent to attend today, but had no instructions to appear on his behalf. Mr Ayache did, however, write to Mr Zoppo last Friday, 12 April 2019 (included in annexure 'B' to today's affidavit), advising him:
“1. Mr Stojanovski has previously not been able to comply with the order to demolish as he could not afford to pay for the costs associated with demolishing the structure;
2. Mr Stojanovski has now made arrangements with a friend (who operates a demolition company) to attend to the demolition works (free of charge); and
3. The demolition works will commence on about 15 May 2019.”
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The letter concluded:
“Having regard to the above, Mr Stojanovski has asked whether your client will agree to final consent orders disposing of the matter before the Court and advise the amount of time Council will allow in order for Sydney City Civil Australia Pty Ltd to undertake the demolition works.”
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Thereafter, there were further attempts to have the 1st Respondent appear today, including a text message from Mr Zoppo to his phone at 8.18am this morning (Zoppo 15 April 2019 annexure 'D').
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I am not satisfied that the Council's NOM of 30 October should be further deferred because of the eleventh-hour suggestion relayed from the 1st Respondent that, after all this time, he might be able to have "a friend ... attend to the demolition works" in at least a further month's time.
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In all the circumstances of the case, I am content to make orders 1 to 6 of the Council's Notice of Motion, filed 30 October 2018, and to stand the matter over for a sentencing hearing, to be fixed, if needed, in, say, three months' time.
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The Court makes the following orders:
The First Respondent having continued to use the two sheds (Sheds), which were erected on the land described as Part Lot 68 DP 2997 known as 47 Jersey Avenue, Mortdale (Property) without development consent, for the purpose of a habitable dwelling, in contravention of Order 2 as made by this Court in proceedings 2018/99739 on 21 August 2018, is guilty of contempt of Court.
The First Respondent having failed to demolish all unlawfully erected structures on the Property (including the concrete slab and the Sheds) within 28 days of the making of Order 3 as made by this Court in proceedings 2018/99739 on 21 August 2018, is guilty of contempt of Court.
That the First Respondent, within 28 days of the making of this order, must demolish all unlawfully erected structures on the Property including the Sheds and the concrete slab.
If all unlawfully erected structures on the Property have not been demolished by the end of the period specified in Order (3) above, the Applicant is directed, within 21 days of the end of that period, to enter the Property and, carry out the demolition of all unlawfully erected structures on the Property including the sheds and the concrete slabs and remove and lawfully dispose of the unlawfully erected structures.
The First Respondent is to pay the Applicant's costs incurred in complying with Order (4).
The First Respondent is to pay the Applicant's costs of this Notice of Motion on an indemnity basis.
The sentencing hearing in respect of the 1st Respondent is stood over to the List Judge list on Friday 10 May 2019 for directions.
Liberty is granted to both parties to have the Registrar restore the matter to the list on three days' notice.
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Decision last updated: 16 April 2019
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