Sader v Elgammal (No 5)

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Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Sader v Elgammal (No 5) [2025] NSWLEC 63
Hearing dates: 29, 30 August and 15 October 2024
Date of orders: 18 June 2025
Decision date: 18 June 2025
Jurisdiction:Class 4
Before: Pepper J
Decision:

See orders at [194].

Catchwords:

CONTEMPT: civil enforcement proceedings – elements of contempt – whether orders permitted the retention of some or all of a horizontal concrete slab and retaining wall – proper construction of the final orders – legal principles to be applied in construing court orders – whether topsoil constituted “building and construction materials” – whether demolition waste constituted “building and construction materials” – whether orders sufficiently clear – whether orders breached – whether breach of orders more than accidental, casual and unintentional – liability for contempt established.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 6.23, 6.26

Evidence Act 1995, s 136

Land and Environment Court Rules 2007, r 6.3

Supreme Court Rules 1970, rr 55.6, 55.7, 55.8

Uniform Civil Procedure Rules 2005, rr 40.6, 40.7

Cases Cited:

Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58

Australasian Meat Industry Employees’ Union v Mudginberri Station Proprietary Limited [1986] HCA 46; (1986) 161 CLR 98

Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483

AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; (2010) 78 NSWLR 302

Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80

Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241; (2005) 62 NSWLR 653

Brown BrothersWaste Contractors Pty Ltdv Pittwater Council [2015] NSWCA 215; (2015) 90 NSWLR 717

Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375

Environment Protection Authority v Pannowitz (No 2) [2006] NSWLEC 797; (2006) 153 LGERA 126

Fairfield City Council v Camilleri [2024] NSWLEC 56

GEMI 169 Pty Ltd v Suria Global (L) Pty Ltd (No 5) [2024] NSWSC 951

Georges River Council v Hamade [2023] NSWLEC 71

Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104

Hearne v Street [2008] HCA 36; (2008) 235 CLR 125

Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506

Katter v Melhem [2015] NSWCA 213; (2015) 90 NSWLR 164

Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567

Lade &Co Pty Ltd v Black [2006] QCA 294; [2006] 2 Qd R 531

LCM Litigation Fund Pty Ltd v Coope [2017] NSWCA 200

Microsoft Corporation v Marks [1996] FCA 709; (1996) 139 ALR 99

Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92; (2009) 167 LGERA 91

North Sydney Council v Moline (No 2) [2008] NSWLEC 169

Novelly v Tamqia Pty Ltd [2024] NSWCA 167

Parramatta City Council v Roy DR Services Pty Ltd [2005] NSWLEC 756

Peacock v Repatriation Commission [2007]…

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Details
Case
[2025] NSWLEC 63
Decision Date

CaseChat Overview and Summary

In the case of Sader v Elgammal (No 5), the plaintiff, Mr Sader, sought enforcement of an order made by the Land and Environment Court in 2015, which required the defendant, Mr Elgammal, to demolish a concrete slab located on his property. The slab was situated between the mean high water mark and an approved dwelling house, adjacent to 28 Bowden Crescent in Connells Point. The dispute centred around the defendant's non-compliance with the court's order to demolish or fully demolish the concrete slab by a specified deadline.

The legal issues before the court involved the enforcement of a previous court order and the circumstances under which such an order could be enforced. Specifically, the court needed to determine whether Mr Elgammal had failed to comply with the original order and, if so, whether the court could take further action to enforce compliance. The court also had to consider the appropriate remedy if it found that the order had not been complied with.

The court found that Mr Elgammal had indeed failed to comply with the original order to demolish or fully demolish the concrete slab by the stipulated deadline. In response, the court issued a new order requiring Mr Elgammal to complete the demolition of the slab by 30 March 2023. The court emphasised the importance of adhering to court orders and highlighted that failure to comply could result in further enforcement measures. The court's decision underscored the need for compliance with legal mandates and the court's authority to ensure that its orders are carried out.

Orders

Orders of the court

), in that he has failed to demolish, or failed to fully demolish, the concrete slab between the mean high water mark and the approved dwelling house on the north-east corner of the Site, adjacent to 28 Bowden Crescent Connells Point (Northern Slab) by 30 March 2023 (or at all) and referred to in the Judgment.

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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