Jamie Darren Lonsdale v Gilbert & (2) Ors

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Land and Environment Court


of New South Wales


CITATION: Jamie Darren Lonsdale & Anor v Gilbert & (2) Ors [2007] NSWLEC 36
PARTIES:

APPLICANTS:
Jamie Darren Lonsdale and Trudy Lonsdale

FIRST RESPONDENT:
Paul David Gilbert

SECOND RESPONDENTS:
Barry Albert Ellston and Judith Ann Ellston

THIRD RESPONDENT:
Peter Joseph Moroney
FILE NUMBER(S): 30860 of 2004
CORAM: Lloyd J
KEY ISSUES:

Practice and Procedure :- contravention of court order - failure to serve original order – charge of contempt – requirements of personal service and penal endorsement -– discretion to dispense with the requirements – relevant considerations – evidence of knowledge of the terms of order – evidence of prior attempts to comply

Contempt – contravention of court order – charge of contempt – opportunity given to purge contempt
LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 15 r 6
Supreme Court Rules 1970 Pt 42 r 6 and r 8
CASES CITED: Bailey v Marinoff (1971) 125 CLR 529;
Clifford v Middleton (1974) VR 737;
DJL v Central Authority (2000) 201 CLR 226;
Drummoyne Municipal Council v Lewis [1974] 1 NSWLR 655;
Fullerton v Gardiner (NSWSC, Powell J, 31 October 1978, unreported),;
J & T Lonsdale v P Gilbert & Ors [2006] NSWLEC 30;
McGirr v Xenos (2006) 144 LGERA 172;
Miller v Eurovox Pty Ltd [2004] VSCA 211;
Primelife Corp Ltd v Newpark Pty Ltd [2003] VSC 106;
United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323;
Von Doussa v Owens (No. 2) (1982) 30 SASR 391
DATES OF HEARING: 01/12/2006
 
DATE OF JUDGMENT: 

1 February 2007
LEGAL REPRESENTATIVES:

APPLICANTS:
A Crossland (barrister)
SOLICITORS:
Turnbill Hill Lawyers

FIRST RESPONDENT
P Sladen (agent)
SOLICITORS:
N/A

SECOND AND THIRD RESPONDENTS:
N/A


JUDGMENT:

- 14 -

      IN THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Lloyd J

      Thursday, 1 February 2007

      LEC No. 30860 of 2004

      LONSDALE & ANOR v GILBERT & (2) ORS [2007] NSWLEC 36

      JUDGMENT

Introduction

1 HIS HONOUR: On 30 January 2006, Bignold J delivered a judgment in proceedings brought by Jamie Darren Lonsdale and Trudy Lonsdale, the applicants, for relief under the Encroachment of Buildings Act 1922. The orders made by his Honour included the following orders against the first respondent, Mr Paul David Gilbert:

          ….
          2. The first Respondent, as encroaching owner under the Encroachment of Buildings Act 1922 , remove from the Applicants’ land being lot 39 in Deposited Plan 879395 and known as 7 Matelot Place, Belmont the encroachments comprising a timber retaining wall and colorbond fence erected on top of that wall emanating from the first Respondent’s property, being lot 103 in Deposited Plan 1062309 and known as No 8 Sabot Close, Belmont.
          ….
          4. The works referred to in Orders 2 and 3 be carried out within 60 days (or such further period as the parties may agree in writing).

2 This matter has come before me for the determination of an amended notice of motion for contempt brought by the prosecutors,…

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Details
Case
[2007] NSWLEC 36
Decision Date

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Jamie Darren Lonsdale and Trudy Lonsdale v Gilbert and others was heard by Lloyd J. The applicants, Jamie Darren Lonsdale and Trudy Lonsdale, sought relief under the Encroachment of Buildings Act 1922 against the respondents, who had erected an encroachment on the applicants' property. Bignold J had previously granted the applicants' relief and ordered the respondents to remove the encroachments within 60 days. The applicants subsequently brought a motion for contempt against the first respondent, Paul David Gilbert, for failing to comply with the order to remove the encroachments.

The legal issues before the court were whether the motion for contempt could proceed despite the failure to serve the original order personally on the defendant and whether the defendant's failure to comply with the court order constituted contempt. The court considered relevant case law and rules, including Part 42 of the Supreme Court Rules 1970 and Part 15 of the Land and Environment Court Rules 1996. The court also considered the circumstances in which the court may dispense with the requirements of service under the rules.

The court found that the defendant was aware of the court's orders and had made efforts to comply with them, but had not yet done so. The court also found that the circumstances of the case were distinguishable from cases where the court had refused to exercise its discretion to dispense with the requirement of service. The court exercised its discretion to dispense with the requirements of service under Part 42, rule 8 of the Supreme Court Rules 1970. The court found that the defendant was in contempt of court for his failure to comply with the order to remove the encroachments within the specified time.

The court adjourned the hearing to give the defendant an opportunity to purge or clear his contempt by complying with the court's orders. The court reserved the question of punishment or penalty and costs until the adjourned hearing. The court made formal orders dispensing with the requirements of service, finding the defendant in contempt, adjourning the hearing, and reserving the question of punishment, penalty, and costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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