Hunters Hill Council v Hakim - [2010] NSWLEC 62

Land and Environment Court

of New South Wales

CITATION: Hunters Hill Council v Hakim & Anor [2010] NSWLEC 62

PARTIES:
PROSECUTOR
Hunters Hill Council
DEFENDANTS
Mick Hakim and Yvonne Hakim

FILE NUMBER(S): 40507 of 2008

CORAM: Sheahan J

KEY ISSUES: CONTEMPT :- consent orders requiring total removal of a fence; only parts removed; development consent and building certificate refused; pleas of guilty entered on the day; fines and daily penalties; indemnity costs

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Hunters Hill Local Environmental Plan No.1

CASES CITED: Environment Protection Authority v Pannowitz (No.2) [2006] NSWLEC 797; 153 LGERA 126
Mosman Municipal Council v Kelly (No.6) [2010] NSWLEC 20
Nambucca Shire Council v Mirage Property Group Pty Ltd (No.2) [2008] NSWLEC 136
Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435
Wood v Staunton (No.5) (1996) 86 A Crim R 183

DATES OF HEARING: 28 April 2010

EX TEMPORE JUDGMENT DATE: 28 April 2010

LEGAL REPRESENTATIVES:
PROSECUTOR
Ms M Carpenter
SOLICITORS
HWL Ebsworth Lawyers
DEFENDANTS
Mr P Clay
SOLICITORS
John B Hajje & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

28 April 2010

40507 of 2008 HUNTERS HILL COUNCIL v HAKIM & ANOR
EXTEMPORE JUDGMENT

Introduction

1 His Honour: In this matter the two defendants Mr & Mrs Hakim have been charged with contempt of orders of the court, made by consent in resolution of their dispute with Council over the construction in February 2008 of a brushwood fence some 18m in length, and 3m high, without the necessary consent under Hunters Hill Local Environmental Plan No.1.

2 Both defendants have today pleaded guilty, and this judgment concerns the penalty to be imposed.

3 The class 4 proceedings were commenced on 28 May 2008, and the relevant orders were made on 19 February 2009, but Mr Hakim admits in his affidavit that he received a letter dated 11 March 2008 from the Council’s solicitors complaining about (1) the construction of the fence without consent, and (2) the failure of the fence to comply with the consent already granted for the construction of the house with a “palisade” fence.

4 On the advice of his solicitor, Mr Hajje, Mr Hakim responded to the letter by lodging a building certificate application, which was dated 25 March 2008, but not received by Council until 18 April 2008.

5 The 11 March 2008 letter asserts that Council, on 4 February 2008, issued a notice of intention to issue an order concerning the fence. Mr Hakim does not recall receiving any such notice, and adheres to his sworn statement that the 11 March letter was “the first time … it was suggested to [him] that the work was unlawful”.

6 The consent Orders made by Pain J on 19 February 2009 were in the following terms:

The Court:

1. declares that the Respondents, by themselves, their servants or agents, carried out development being the construction of a brushwood fence [‘Brushwood Fence’] along the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 62
Decision Date: 28 April 2010

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was tasked with determining contempt charges against Mick and Yvonne Hakim for their failure to comply with court orders requiring the removal of a brushwood fence constructed without the necessary consent. The Hakims had built the fence in February 2008 and despite being served with orders to remove it within 28 days, they only partially complied, leading to contempt proceedings being initiated by the Hunters Hill Council. The Hakims pleaded guilty to the charges on the day of the hearing.

The primary legal issues addressed by the court were whether the defendants' actions constituted contempt of court and, if so, what penalties should be imposed. The court had to consider the defendants' failure to fully comply with the consent orders, their reliance on their solicitor's advice, and their eventual partial compliance with the orders. The court also needed to balance the need for punishment and deterrence against the defendants' contrition and financial difficulties.

The court found that the defendants' actions constituted serious and continuous contempt of court, despite their pleas of guilty and expressions of contrition. The Hakims had deliberately and unlawfully used the fence for over two years, and their partial compliance was deemed insufficient. The court emphasized the importance of enforcing compliance with court orders to protect the integrity of the legal system and the planning regime. The court also considered the defendants' financial situation and lack of prior convictions in determining the appropriate penalties. Ultimately, the court imposed fines and ordered the defendants to pay the Council's costs on an indemnity basis.

In conclusion, the court found Mick and Yvonne Hakim guilty of contempt of court and imposed fines of $12,000 and $2,400 respectively, with discounts applied. Additionally, a daily penalty of $1,000 per day was suspended until the defendants fully complied with the removal of the fence. The defendants were also ordered to pay the Council's costs on an indemnity basis.

Orders