Owners Strata Plan 37762 v Pham (No 2) - [2007] NSWLEC 306

Land and Environment Court

of New South Wales

CITATION: Owners Strata Plan 37762 v Pham and Ors (No 2) [2007] NSWLEC 306

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 :- penalty for contempt where no purging of contempt - whether indemnity costs should be awarded - whether motion for extension of time to comply with orders ought be granted

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 21A s 22
Fines Act 1996 s 10, s 122
Land and Environment Court Act 1979 s 69
Land and Environment Court Rules 1996 Pt 1 r 8

CASES CITED: Bourke Shire Council v Dwyer (1993) 79 LGERA 185;
Campbelltown City Council v Toth [2005] NSWLEC 186;
Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225;
EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59;
Degmam Pty Ltd (in Liq) v Wright (No 2) [1983] 2 NSWLR 354;
Environment Protection Authority v Thaler [2005] NSWLEC 109;
Environment Protection Authority v Waight [2003] NSWLEC 124;
X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1;
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189;
Manly Council v Arslan, M [2005] NSWLEC 646;
Newcastle City Council v Leaway Pty Ltd & Ors [2005] NSWLEC 305;
Owners of Strata Plan 37762 v Pham and Ors [2005] NSWLEC 663 ;
Owners Strata Plan 37762 v Pham and Ors [2007] NSWLEC 252;
Parramatta City Council v Roy D R Services Pty Ltd, Ray Yong Xu & Ors [2005] NSWLEC 756;
Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435;
Permewan Wright Consolidated Pty Ltd v Attorney General [1978] 35 NSWLR 365 ;
Primelife Corporation Ltd v NewPark Pty Ltd & Andrejic [2003] VSC 106;
Prior's Bus Service Pty Ltd v Eurobodalla Shire Council [2003] NSWLEC 98;
Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309;
Sutherland Shire Council v Sawyer [2000] NSWLEC 162;
The Owners – Strata Plan No 37762 v Dinh Phuong Dung Pham and Anor [2006] NSWSC 1287;
Young v Jackman (1986) 7 NSWLR 97

DATES OF HEARING: 21 May 2007
25 May 2007

DATE OF JUDGMENT:
1 June 2007

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

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

1 June 2007

40358 of 2005 Owners Strata Plan 37762 v Pham and Ors (No 2)
JUDGMENT

1 Her Honour: In Owners Strata Plan 37762 v Pham and Ors [2007] NSWLEC 252 I found the First, Second and Fourth Respondents guilty of contempt. I must now sentence those Respondents. The circumstances of 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: [2007] NSWLEC 306
Decision Date: 1 June 2007

CaseChat Overview and Summary

Owners Strata Plan 37762 v Pham (No 2) involved a case in the Land and Environment Court of New South Wales where the owners of a strata plan sought to enforce compliance with court orders against the respondents, Pham, Luu, and Pham, for operating a spray booth and altering common property in violation of the court's orders. The legal issues before the court included determining the penalty for contempt where no purging of the contempt had occurred, whether indemnity costs should be awarded, and whether a motion for an extension of time to comply with the orders should be granted. The court considered various factors in sentencing for contempt, including the seriousness of the contempt, whether the respondents were aware of the consequences of their actions, and the need for general deterrence and denunciation of the conduct. Pain J found the First, Second, and Fourth Respondents guilty of contempt and imposed fines of $10,000, $5,000, and $8,000, respectively. The court also ordered that 50% of the fines be paid to the prosecutor and that the respondents pay the applicant's costs of the contempt motion on an indemnity basis. The motion for an extension of time to comply with the orders was dismissed.

Orders