Manly Council v Angelo

[1999] NSWLEC 59

Land and Environment Court

of New South Wales

CITATION:

Manly Council -V- Angelo [1999] NSWLEC 59

This judgment revised on:

PARTIES

APPLICANT:
Manly Council

RESPONDENT:
Angelo, D. P.

NUMBER:

40056 of 1994

CORAM:

Bignold J

KEY ISSUES:

:- non-compliance
Contempt of Court - Punishment for proven contempt
Personal circumstances of contemnor - modest fine imposed

LEGISLATION CITED:

non-compliance
Contempt of Court - Punishment for proven contempt
Personal circumstances of contemnor - modest fine imposed

DATES OF HEARING:

03/17/1999

EX TEMPORE JUDGMENT DATE:

03/17/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr. R.K. Graham

SOLICITORS:
Abbott Tout

RESPONDENT:
In person

Solicitors:
N/A

JUDGMENT:

IN THE LAND AND Matter No. 40056 of 1994
ENVIRONMENT COURT OF Coram: Bignold J.
NEW SOUTH WALES 17 March 1999

MANLY COUNCIL

Applicant

v.

ANGELO, D. P.

Respondent

JUDGMENT


1. On 11 February 1999 I found the Respondent, Danny Peter Angelo, guilty of contempt of Court as alleged in the Council's Notice of Motion filed on 12 March 1998. That contempt was constituted by a failure to comply with orders made by the Court on 10 July 1995, requiring certain works to be undertaken to residential premises partly owned by the Respondent with his brother situate at 69 Wood Street, Manly.

2. In my reasons for judgment published on 11 February I outlined the course of the case and its history. In finding the Respondent guilty of contempt, I reserved to today the questions of penalty, sentence and costs. On that occasion the Respondent did not appear, but today Mr Angelo has appeared and represented himself.

3. Mr Angelo has informed the Court of a number of facts which are not contested by the Council, the most pertinent of which is the fact that on 17 February this year Mr Angelo was declared a bankrupt by order of the Federal Court of Australia. Mr Angelo has informed the Court that the party moving for his bankruptcy is a trade creditor to whom he has owed a sum of $10,300 for some years. The debt had not previously been enforced because of the awareness by the creditor of Mr Angelo's own problems with indebtedness owed to him. That indebtedness, which was referred to in my reasons for judgment, is in the sum of some $37,000 and has been owed to Mr Angelo by a trade client for something like six or seven years.

4. When Mr Angelo last appeared before the Court in October last year he expressed the hope and expectation that he would be receiving a substantial part of that indebtedness by the liquidator of his trade debtor. In fact, he has informed the Court today that as an unsecured creditor he was offered by the liquidator the sum of 11 cents in the dollar, which offer was declined. Mr Angelo has also informed the Court that his indebtedness under a mortgage to the Commonwealth Bank in respect of his property is still outstanding, but since his appearance in Court on 27 October last year he has not heard any more from the bank. However, it is apparent that the bank has the entitlement to act on the default of Mr Angelo's mortgagee at any moment, and to that extent both Mr Angelo and his property are relevantly imperilled.

5. It has been noted that Mr Angelo owns the property as a joint tenant with his brother, John William Angelo, who though a party to these proceedings has never participated and has never been proceeded against. Although the mortgage that Danny Angelo has given to the bank is in respect of his interest only, it would follow from the joint tenancy that the bank's interest as mortgagee is in respect of the entire property and that Mr Angelo's brother's interest is therefore similarly imperilled. That imperilment is independently raised by Mr Angelo's recent declaration of being a bankrupt, and Mr Angelo is to see the official trustee later this week to give account of his assets and liabilities. Mr Angelo has also indicated that later this week he intends to see the solicitor acting for his trade debtor, to see whether money can be released to pay the debt which has given rise to his bankruptcy.

6. Added to all these financial woes is the fact that Mr Angelo has recently been injured and has been off work for some period of time.

7. Mr Angelo has candidly informed the Court that he desires to see the house building work completed to bring it into a state of compliance with the Court orders. He estimates that a sum of $12,000 to $15,000 (with him supplying the labour) would be adequate to bring about that result. He recognises that in doing so, the property as a residence will be increased in value far beyond that amount of expenditure, but his problem is, as it has been in these past four or five years, one of not having the financial wherewithal to undertake the work, and his problems have become exacerbated in recent times with his being declared a bankrupt.

8. I am satisfied that the disobedience of the Court's orders, though wilful and deliberate in the sense required to sustain a finding of contempt, has been in no ways contumacious or involved any act of defiance by Mr Angelo. I am entirely satisfied that if he had the wherewithal, he would set about having the work done and bringing the Court's orders into a state of full compliance. In his present bankrupt state he of course has little prospect of raising funds from any source to undertake the work, and realistically, the source of funding would appear to be from his brother, the joint tenant of the property, whose interest, if I may be so bold as to say, would appear to be jeopardised by the present Respondent's liabilities to the bank, to the official trustee in bankruptcy, and to the Court and the Council in these proceedings, and it is to be hoped that Mr Angelo's brother might be able to assist Mr Angelo in funding the required building work to comply with the Court's orders.

9. The case poses a dilemma for the Court which, having found the disobedience with its orders to be relevantly contempt of Court, must take some action in vindication of its authority and the integrity of its orders, but the options realistically available to it are, in the circumstances of this case, particularly straightened. The imposition of a fine either as a punitive measure or a combined punitive and coercive measure would appear to be futile because Mr Angelo is simply lacking financial means, and the impost would simply add to his financial woes.

10. It is not to be forgotten that the property, though owned by Mr Angelo with his brother, is now fairly and squarely within the grasp of the official trustee in bankruptcy and also the bank as mortgagee.

11. There is an interest of course in bringing these proceedings to an end, although the end that I am confronting is not an end which guarantees a state of compliance with the Court's orders, but this is perhaps just to recognise present realities.

12. In the circumstances, I propose to impose a modest fine on Mr Angelo in respect of the disobedience of the Court's orders, recognising that that disobedience has not involved any misconduct in terms of a wrong attitude or contumacious behaviour on his part, but has simply been the product of his being unable to solve his financial difficulties, caught up as he is with actions against trade debtors and now himself caught in the web of bankruptcy.

13. In the circumstances, a fine of $1,000 in my view, is an appropriate recognition of the contempt committed in the present case, but its payment is in fact to be suspended, and ultimately to be remitted if within six months of today's orders the required work to comply with the Court's orders is accomplished. This will give Mr Angelo a respite from the immediate dictates of the present case so that he can turn his attention to the bankruptcy question and give him sufficient time to seek to raise the funding of the required works from the most likely source, namely his brother, the joint tenant of the property.

14. Accordingly, for all the foregoing reasons, I make the following orders:
1. A fine of $1,000 is imposed in respect of the contempt found to have been committed by the Respondent, Danny Peter Angelo, by the Court in its Orders of 11 February 1999.
2. Such fine to be suspended for a period of six months.
3. If within the ensuing six months the building works required by the Court Orders are completed to bring about a state of compliance with the Court orders, the fine of $1,000 is to be remitted.
4. The Respondent is to pay the Council's costs of the Contempt Motion in the sum agreed or, failing agreement, as assessed.
5. The exhibit is to be returned.



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I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE N R BIGNOLD.

Associate