Jamie Darren Lonsdale v Gilbert & (2) Ors - [2007] NSWLEC 36

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:

Encroachment of Buildings Act 1922

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

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: [2007] NSWLEC 36
Decision Date: 1 February 2007

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