Rafailidis v Camden Council

Case [2015] NSWCA 185

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Rafailidis v Camden Council [2015] NSWCA 185
Hearing dates:17 February 2015
Date of orders: 17 February 2015
Decision date: 17 February 2015
Before: McColl JA at [1]; Gleeson JA at [62]; Bergin CJ in Equity at [63]
Decision:

(1) Allow the appeal.
(2) Set aside the orders of Justice Sheahan made on 18 March 2014 finding Mrs Koula Rafailidis and Mr Efrem Rafailidis guilty of contempt and convicting each of them of that charge.
(3) Set aside the order made by Justice Sheahan on 18 March 2014 fining Mrs Koula Rafailidis.
(4) Set aside the order made by Justice Sheahan on 25 June 2014 fining Mr Efrem Rafailidis.
(5) Set aside all costs orders made by Justice Sheahan on 18 March 2014 and 25 June 2014.
(6) Order Camden Council to pay the appellants’ costs of the appeal and their costs of the proceedings before Justice Sheahan.
(7) Otherwise dismiss the further amended notice of appeal.

Catchwords: PROCEDURE – Contempt of court – construction of court orders – first court order requiring land owners to “within ninety days to…obtain development consent” to allow a building to remain on certain land – where land owners obtained such development consent in 2012 but did not carry out the works that consent required within ninety days – where “ninety days” subsequently varied by second order to “4 July 2013” – where land owners did not carry out the works by that date – where land owners charged with contempt of court – whether on proper construction of first order 2012 development consent constituted compliance – whether contempt charge ambiguous
Legislation Cited: Camden Local Environmental Plan 2010
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979 (NSW)
Cases Cited: Ashrafi Persian Trading Co Limited t/as Roslyn Gardens Motor Inn v Ashrafinia [2001] NSWCA 243; (2002) Aust Torts Reports ¶81-636
Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58
Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483
Camden Council v Rafailidis [2012] NSWLEC 51
Camden Council v Rafailidis (No 2) [2012] NSWLEC 125
Camden Council v Rafailidis (No 3) [2012] NSWLEC 217
Camden Council v Rafailidis (No 4) [2014] NSWLEC 22
Camden Council v Rafailidis (No 5) [2014] NSWLEC 85
Harris v Harris [2000] EWHC 231 (Fam); [2001] 3 FCR 193
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248
Kao, Lee & Yip v Donald Koo Hoi Yan [2009] HKCFA 59; [2009] 5 HKC 36; (2009) 12 HKCFAR 830
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
R v Liberti (1991) 55 A Crim R 120
Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387
Ross v Lane Cove Council [2014] NSWCA 50; (2014)…

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AGLC
Rafailidis v Camden Council [2015] NSWCA 185
Case
[2015] NSWCA 185
Decision Date

CaseChat Overview and Summary

In *Rafailidis v Camden Council*, the Court of Appeal of New South Wales considered a contempt of court charge brought by Camden Council against the landowners, Mrs Koula Rafailidis and Mr Efrem Rafailidis. The dispute arose from the landowners' alleged failure to comply with court orders requiring them to obtain development consent for a building on their land within specified timeframes.

The central legal issues before the Court of Appeal were the proper construction of the original court order, which mandated obtaining development consent within ninety days, and whether the subsequent variation of that timeframe to 4 July 2013 altered the nature of the compliance required. Specifically, the court had to determine whether obtaining the development consent itself constituted compliance with the order, or if the order also required the carrying out of the works authorised by that consent within the stipulated periods. The ambiguity of the contempt charge was also a point of contention.

The Court of Appeal allowed the appeal, finding that the landowners had complied with the court's orders. The court reasoned that the initial order, when properly construed, required the landowners to *obtain* development consent within ninety days, not necessarily to *carry out* the works authorised by that consent within that timeframe. The subsequent variation of the deadline to 4 July 2013 similarly related to the obtaining of consent. Therefore, the landowners' actions in securing development consent in 2012, and subsequently by the extended date, satisfied the terms of the court's orders.

Consequently, the Court of Appeal set aside the findings of contempt and the associated fines and costs orders made by Justice Sheahan. The court ordered Camden Council to pay the appellants' costs of the appeal and the proceedings at first instance.

Orders

Orders of the court

(1) Allow the appeal.

(2) Set aside the orders of Justice Sheahan made on 18 March 2014 finding Mrs Koula Rafailidis and Mr Efrem Rafailidis guilty of contempt and convicting each of them of that charge.

(3) Set aside the order made by Justice Sheahan on 18 March 2014 fining Mrs Koula Rafailidis.

(4) Set aside the order made by Justice Sheahan on 25 June 2014 fining Mr Efrem Rafailidis.

(5) Set aside all costs orders made by Justice Sheahan on 18 March 2014 and 25 June 2014.

(6) Order Camden Council to pay the appellants’ costs of the appeal and their costs of the proceedings before Justice Sheahan.

(7) Otherwise dismiss the further amended notice of appeal.

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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