Owners Strata Plan 37762 v Pham and Ors - [2007] NSWLEC 252

Reported Decision: 154 LGERA 150

Land and Environment Court

of New South Wales

CITATION: Owners Strata Plan 37762 v Pham and Ors [2007] NSWLEC 252

PARTIES: APPLICANT
Owners Strata Plan 37762
FIRST RESPONDENT
Dinh Phuong Dung Pham
SECOND RESPONDENT
Kiet Luu
THIRD RESPONDENT
Liverpool City Council
FOURTH RESPONDENT
Dinh Ky Pham

FILE NUMBER(S): 40358 of 2005

CORAM: Pain J

KEY ISSUES: Contempt :- order restraining use of spray booth on premises in strata plan without consent of Council - order requiring remediation of common property in strata plan - finding of wilful contempt - whether Pt 42 and/or Pt 55 of Supreme Court Rules apply

LEGISLATION CITED: Land and Environment Court Act 1979 s 20(4), s 23
Land and Environment Court Rules 1996 Pt 6 r 1
Supreme Court Rules 1970 Pt 42, Pt 55

CASES CITED: AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98 ;
Auburn Council v Czopak [No 4] [2005] NSWLEC 439;
Auburn Council v Zizikas and Anor [1999] NSWLEC 155;
Bourke Shire Council v Dwyer (1993) 79 LGERA 185;
Campbelltown City Council v Toth [2005] NSWLEC [2005] NSWLEC 89;
Clifford v Middleton (1974) VR 737;
Drummoyne v Lewis (1974) 1 NSWLR 655 ;
Environment Protection Authority v Pannowitz [2006] NSWLEC 219;
Environment Protection Authority v Waight [2003] NSWLEC 93 beria Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87;
John Allan Witham v Holloway (1995) 131 ACR 201 ;
Miller v Eurovox Pty Ltd & Anor [2004] VSCA 211 ;
Owners - Strata Plan 37762 v Pham and Ors [2005] NSWLEC 500;
Owners of Strata Plan 37762 v Pham and Ors [2005] NSWLEC 663;
Pelechovski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 ;
PFT McGirr v D Xenos [2006] NSWLEC 60;
Primelife Corporation Ltd v Newpark Pty Ltd (2003) VSC 106 ;
Randwick City Council v Athens and Anor (No 7) [2004] NSWLEC 213;
Tweed Shire Council v Mannix (1983) 50 LGRA 369;
Windsurfing Inc v Sailboards Pty Ltd (1986) 19 FCR 110

DATES OF HEARING: 26 April 2007, 27 April 2007, 30 April 2007

DATE OF JUDGMENT:
9 May 2007

LEGAL REPRESENTATIVES: APPLICANT
Mr P Tomasetti (Barrister)
SOLICITORS
Andreones Pty. Limited Solicitors
FIRST, SECOND and FOURTH RESPONDENTS
Mr Q Nguyen (Barrister)
SOLICITORS
Al Chi Hoang Solicitors and Barristers
THIRD RESPONDENT
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

9 May 2007

40358 of 2005 Owners Strata Plan 37762 v Pham and Ors
JUDGMENT ON CONTEMPT

1 Her Honour: In Owners - Strata Plan 37762 v Pham and Ors [2005] NSWLEC 500 Cowdroy J made orders on 13 September 2005 providing that:

1. Development consent DA63/04 granted on 13 October 2003 by Liverpool City Council in respect of lot 5 in Strata Plan No 37762 is declared invalid.

2. The first and second respondents and each of them be restrained from using the spray booth within lot 5 in Strata…

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 252
Decision Date: 9 May 2007

CaseChat Overview and Summary

Owners Strata Plan 37762 commenced proceedings in the Land and Environment Court against the First and Second Respondents seeking declarations of contempt against them and against a third party who was not previously a party in these proceedings. The First Respondent owns Lot 5 in Strata Plan No 37762 (the premises) the subject of the original orders of Cowdroy J. The Second Respondent is the tenant of those premises and conducts a car repair business which includes the operation of the spray booth. The Fourth Respondent, who was not previously a party to these proceedings, is the father of the First Respondent. The Applicant relied on affidavit evidence from neighbouring owners and an Environmental Planning Enforcement Officer employed by Liverpool City Council, the Third Respondent, to establish that the Respondents had breached the original orders of the Court. The Respondents gave oral evidence and were cross-examined. The Respondents' evidence was that they were not in deliberate or wilful disobedience of the Court’s orders, but rather any breach was due to an innocent misapprehension which resulted from the Applicant’s misleading actions. The Respondents argued that there was failure on the part of the Applicants in failing to communicate a requirement for compliance for nine months before commencing these contempt proceedings. The Respondents were self-represented at this time. Pain J found that the orders of the Court did not expire in May and June 2006 as the Respondents’ counsel continued to state during his written and oral submissions. Statements to similar effect in the affidavits of the Second and Fourth Respondents were also incorrect. The orders on 10 May 2006 were made by consent of both parties. In the absence of further consent orders being filed by the parties the orders of Cowdroy J took effect when the periods in the consent order dated 10 May 2006 for extension for compliance expired. That is clear from the order on its face. It is also not disputed apart from the 27 March 2007 charge that the orders have not been complied with by the Respondents. There is clearly contempt by all the Respondents as the Court’s orders which are in force have not been complied with. In order to determine if that contempt is technical, wilful or contumacious it is necessary to consider the evidence further to determine whether there was a reasonable excuse for the Respondents’ non-compliance. Before doing so Pain J will determine if he should make a finding of contempt in relation to the Second Respondent for 27 March 2007. Pain J found the Second Respondent was in contempt of the Court orders on 27 March 2007. In determining whether the contempt was wilful or contumacious in relation to the Second and Fourth Respondents Pain J needed to consider whether their belief about the (non) effect of the orders was reasonable in the circumstances. Pain J accepted on the Second and Fourth Respondents’ affidavit evidence that they have not deliberately defied the Court’s orders. Pain J found that the contempt proved of the Second and Fourth Respondents is wilful as identified in Environment Protection Authority v Waight as it is not casual, accidental or unintentional. Pain J made the same finding in relation to the First Respondent.

Orders